Empty Dwellings

Baroness Knight of Collingtree: asked Her Majesty's Government:
	What proposals they will make following the end of the consultation period on local government takeover of privately owned homes.

Lord Bassam of Brighton: My Lords, the consultation on proposed secondary legislation on empty dwelling management orders ended on 14 October. The Office of the Deputy Prime Minister is drafting regulations with a view to commencing the provisions on 6 April next year. It is our intention to except from empty dwelling management orders all dwellings that are unoccupied for less than a time period specified by order and dwellings unoccupied beyond this period that fall within specified uses that demonstrate occasional occupation or intent to occupy.

Baroness Knight of Collingtree: My Lords, will the Minister recognise and place on record that it is an extremely serious matter to deprive an owner of any object—whether it is a house, a horse or a home—which that owner has bought in good faith and entirely legally? Can he assure the House that, under these proposals, no council will ever seize a privately owned home in order to put in tenants when that council already has—as so many do—a large surplus of empty property in which to accommodate them?

Lord Bassam of Brighton: My Lords, the noble Baroness is perhaps misinformed about the real intent of the policy. It is obvious that we are trying to make sure that better use is made of empty property. The legislation was carefully argued through in your Lordships' House, and at various times during its passage it attracted support from the Conservative Benches, not only in your Lordships' House but also in another place. The point about local authorities' management of their own properties is well made, but it remains the case that 80 per cent of empty properties are in the private sector.

Baroness Scott of Needham Market: My Lords, given that about one-third of a million privately owned properties in this country have remained empty for more than six months, could not building on greenfield sites be significantly reduced by bringing those properties back into use, and would not that be welcome? Could not that policy be furthered by encouraging the Treasury to equalise VAT rates on new building and on renovation and repair?

Lord Bassam of Brighton: My Lords, I am not going to be drawn into a debate on different tax regimes. However, I understand the point that the noble Baroness makes and she is absolutely right. There is a vast unused asset in empty properties. Those represent homes and we want to see that good use is made of them. This provision will provide local authorities with the opportunity, by the process of agreement in most instances, properly to manage properties that would otherwise be unused, to make them suitable for people without a home.

Baroness Gardner of Parkes: My Lords, does the Minister think that there is a parallel here with a statement that I read in the newspaper about dormant bank accounts being taken over? How can he be sure that dormant houses are really dormant and that people are not waiting to do repairs? What sort of research will be done to ensure that that is not the situation?

Lord Bassam of Brighton: My Lords, an empty dwelling management order will be made only after the local authority has gone through all the proper processes and the case has been properly considered by a residential property tribunal. There are many safeguards, checks and barriers to the sort of instance which may be concerning the noble Baroness. The local authority will research and understand why the property is empty. There will undoubtedly be very full contact with the owner or the person managing the property. There is also the ultimate safeguard of the issue being heard before a residential property tribunal, so that we can be certain there will be no abuses of the system.

Baroness Miller of Hendon: My Lords, does the Minister agree that, apart from gross neglect or obvious abandonment, there are very few reasons, if any, why a person's property should be expropriated? If he thinks that there are such reasons, perhaps he will inform the House.

Lord Bassam of Brighton: My Lords, this is not a form of expropriation. In many instances, it is the local authority helping the private owner to manage the property better. The noble Baroness clearly does not like the provision, but John Hayes—the Conservative housing spokesman in the other place when we were bringing through legislation on housing—proposed a scheme to lease empty properties which is very much like the one we are proposing in secondary legislation. So I am confused about the Conservative policy on this.

Lord Dixon-Smith: My Lords—

Lord Greaves: My Lords—

Lord Alton of Liverpool: My Lords—

Lord Rooker: My Lords, it is the Cross-Benchers' turn.

Lord Alton of Liverpool: My Lords, what correspondence or communication has the Minister had with the Housing Corporation about the number of housing association properties currently standing empty? Will he ask the Housing Corporation to advise him on those numbers and to tell him why local authorities in cities such as Liverpool, in areas which are supposed to be subject to regeneration, have to take action against housing associations which are publicly funded for leaving properties empty for intolerably long periods?

Lord Bassam of Brighton: My Lords, I was hoping that my brief contained a statistic for housing association dwellings. It has figures relating to registered social landlords, but they may not necessarily be housing associations. It is up to the Government to work with councils, housing associations and the private sector in its many and various forms to ensure that we get the best from empty properties, so that homeless people have access to a decent home and a decent place to live. That is what our policy is trying to do.

Lord Greaves: My Lords, does the Minister understand that in many parts of the country neglected and abandoned properties are causing blight and a nuisance and are making life difficult for otherwise good, respectable families in good, respectable houses in decent streets? This measure is well overdue and very welcome. Will he give an assurance—and I declare an interest as a member of Pendle Borough Council—that the measure can be used effectively by councils such as mine and that the safeguards, checks and barriers which are rightly being put in place to protect the interests of owners will not be so great that EDMOs will be useless in practice?

Lord Bassam of Brighton: My Lords, we believe that this is a practical scheme; we have consulted very carefully on it. We intend to introduce it, as I say, on 6 April next year. We have worked in close liaison with local authorities on this issue and they think that this is a workable and practicable scheme. I am sure that the noble Lord, like other noble Lords, will welcome a measure that puts a roof over the heads of those who are homeless in this country.

Baroness Shephard of Northwold: My Lords, what will be the cost of this measure, and who will bear the cost? Will it be local authorities?

Lord Bassam of Brighton: My Lords, as I understand it, the scheme will be self-financing. It will be administered through the local authorities and the rental income will go back to the owner of the property.

Lord Naseby: My Lords, can the Minister—

Lord Rooker: My Lords, it is time for the next Question. We are well into the eighth minute.

Russia: Anti-terrorism and North Caucasus

Lord Judd: asked Her Majesty's Government:
	What arrangements they have made for co-operation with the Russian Federal Security Service (FSB) on anti-terrorism activities; and what is their assessment in this context of the recent troubles in the north Caucasus region.

Lord Triesman: My Lords, in recent years there has been a steady increase in the exchange of information, initiatives and visits between the security and intelligence services of our two countries relating to international terrorism. The recent events in the north Caucasus, in which many innocent lives were lost, highlight the genuine security concerns faced by the Russian authorities and emphasise the need for international co-operation to combat terrorism.

Lord Judd: My Lords, does the Minister agree that while it is obviously necessary in security matters to work with all sorts of people, the length of spoon with which one sups is quite important? Is it not essential to remember that we are above all in a battle for hearts and minds if the issue of defeating terrorism and building global security is to be won? While terrible, inexcusable acts have been committed by terrorists in the Caucasus and Chechnya, does the Minister agree that the brutality, the indiscriminate nature and the ruthlessness of the Russians have driven young people, and not only young people, into the arms of the extremists? Is it not therefore essential for us to be very careful in our collaboration with Russia, so that what we are doing is not perceived by many in our own country as something about which they are alarmed?

Lord Triesman: My Lords, I acknowledge that my noble friend has a long-standing interest in Chechnya and that he was the special rapporteur on Chechnya for the Parliamentary Assembly of the Council of Europe. He speaks with great authority. We view Russia as an important partner in the international fight against terrorism. Co-operation on counter-terrorism must not be at the expense of losing our interest in human rights concerns and therefore people's hearts and minds. We have consistently said that any counter-terrorism operation in Chechnya or elsewhere should be in strict adherence to the rule of law and must respect human rights.

Lord Hylton: My Lords, does the Minister agree that the recent fighting has left a large number of victims of land mines and unexploded ammunition? What is being done to provide the necessary services for these people?

Lord Triesman: My Lords, a number of aid programmes are being directed at areas such as education and health, and we are making a contribution to them. So long as the terrain is one in which aggressive actions between forces are taking place, the kinds of operation which would involve clearing up land mines are plainly not possible. I wish that they were.

Lord Wallace of Saltaire: My Lords, while recognising the appalling behaviour of a number of Russian forces in the north Caucasus and that some of the Russian police forces are clearly penetrated by organised crime, does the Minister accept that it is useful—maybe even helpful and necessary—to do our best to educate the FSB in how one deals with the problems of counter-terrorism? In this respect, I was very glad to meet the FSB visiting group that has been in Britain in the past few weeks and to see that it was going to Northern Ireland to learn from British experience in dealing with complex terrorist problems. I suggest that the Government continue to attempt to explain to Russian security services the subtleties that one has to get into in dealing with all forms of terrorism and organised crime as they overlap.

Lord Triesman: My Lords, I agree that the kinds of exchange which resulted in the visit to Northern Ireland are invaluable. They certainly provide a basis for raising everybody's mutual understanding. We frequently express to the Russian authorities our belief that security measures which do not respect international and humanitarian law are counterproductive. The long-term solutions to the region's problems will be possible only once there is an end to human rights abuses. So long as those continue, a satisfactory outcome is very unlikely. The visit to Northern Ireland should underline that.

Lord Howell of Guildford: My Lords, I think that we all recognise the point that was made by the noble Lord, Lord Judd, about brutality on both sides, and that we all wish to see the FSB further reformed in the ways that Mr Putin and others have suggested. The reforms have been a bit slow. But are we in Britain being as helpful as we really should be in ensuring that some of the more evil terrorists and people who are in any way charged with terrorism are returned to the Russian Federation? I think the Russians wanted to see Mr Ahmed Zakayev returned. I am not sure that we have been too helpful there. I encountered fury in Moscow when it was discovered that the BBC had been interviewing Mr Basayev, the child killer of Beslan, and there are several other instances where we might be a little more co-operative. Will the Minister assure us that we are going to help the Russian authorities ensure that the really evil men are brought to justice?

Lord Triesman: My Lords, every one of us must share an interest in reciprocity in the counter-terrorist work that we do. The murder of more than 300 children in School No. 1 in Beslan must have been one of the most shocking and horrific acts by any terrorist group at any time; we all deplore it. In the case of Mr Zakayev, who was granted asylum after due assessment by the relevant authorities of his case—and of the UK's obligations under the 1951 UN Convention on Refugees and domestic law—a grant of asylum should not be taken to indicate any United Kingdom approval of the kinds of views that have been expressed. It is a legal decision on an international obligation. Where people can and should be returned, I have no doubt that that is what we should do.

Lord Rea: My Lords, can the Government somehow explain to Mr Putin that the Chechen and the other Islamic peoples of the north Caucasus have never accepted that they are part of Russia? The present conflict is, in fact, a continuation of the colonial struggles that took place in the 18th and 19th centuries. Is it not likely—as in the West Bank, Iraq and any other country that is forcibly occupied—that insurgent attacks, ugly as they are, will continue until a firm agreement is made to withdraw the occupying forces?

Lord Triesman: My Lords, I think it unlikely that Mr Putin will be convinced of that argument.

Lord Truscott: My Lords—

Lord Rooker: My Lords, I am sorry; it is time.

Israel: West Bank

Lord Hylton: asked Her Majesty's Government:
	What representations they have made to the Government of Israel about the 23 square miles of land in the West Bank alleged to have been expropriated from Palestinian owners since July.

Lord Triesman: My Lords, we are greatly concerned by Israeli expropriation of Palestinian land through settlement building and the routing of the barrier on occupied territory, particularly around east Jerusalem. It is contrary to international law. We regularly raise our concerns on these issues with the Israeli Government. Most recently, my honourable friend Dr Howells, the Minister of State, raised our concerns with Foreign Minister Shalom and Housing Minister Herzog during his visit to the region on 27 to 30 September.

Lord Hylton: My Lords, I am glad to hear from the Minister about what his colleagues have been doing, up until only the end of September. Can he confirm whether more land has been taken recently in the West Bank than was actually given back within Gaza? What is the quartet doing to ensure access both into and out of Gaza and east Jerusalem? Can he be a little more specific than his honourable friend was on 26 October in another place?

Lord Triesman: My Lords, I am glad to say that the land that has been taken since the withdrawal from Gaza has not, at this stage, led to a renewal of building. The decision of the Israeli high court about the line of the fence has also adjusted—albeit minimally—the amount of land which falls on the Israeli and Palestinian sides of that fence. I am not aware of a direct measure being made of the acreages involved. I confirm that success in Gaza will depend on there being viable points of access, viable capacity to trade and the development of a full economic future for that part of the country. That is a project in which, I am happy to say, the Egyptian Government are also actively involved.

Lord Archer of Sandwell: My Lords, does my noble friend agree that the purpose of the wall was to reduce the opportunities for terrorist attacks, and that since its construction there has been a substantial reduction? Would he agree, too, that those of us who wish well to both parties can best assist the peacemakers on both sides by refraining from judgmental interventions?

Lord Triesman: My Lords, anything that makes the peace process more difficult should certainly be avoided. It is probably true that the route of the wall and the wall itself—the barrier—has reduced the number of suicide bombings in Israel but we do not believe that the route is the best one for security, particularly since it divides Palestinians from Palestinians, and in many Palestinian villages it is not helping anybody in the conduct of normal life. However, we recognise—I restate this—the Israeli Government's right to defend their citizens from terrorist attacks, including from suicide bombings. Building the barrier on occupied territory is, however, contrary to international law. There is no right on one side of this; we seek the end of terrorist attacks and we seek adherence to international law. It is in that balance that any part of the road map has any chance of success.

Baroness Williams of Crosby: My Lords, the Minister has given wise and honest replies, but may I press him one stage further? The Prime Minister of this country and the President of the United States have repeatedly talked about a two-nation solution with a viable Palestine surviving alongside a secure and peaceful Israel. Does he agree that at a certain point the inroads from the security fence—which are very substantial, especially around the middle of the West Bank area beyond Jerusalem—and the continuing settlements, which have led to another 14,000 settlers arriving to be housed in the West Bank this year alone, will eventually create a situation in which no viable Palestine is physically or economically possible? Are Her Majesty's Government making representations to the other members of the quartet about the absolute necessity of protecting the possibility of a viable Palestine?

Lord Triesman: My Lords, those representations are being made to other members of the quartet, and other members of the quartet have seized on the arguments and made exactly the same points. The fact is that further settlement and further building east of Jerusalem would, in effect, put a knife right through the West Bank, and a contiguous state would not be possible.

Lord Turnberg: My Lords, does my noble friend accept that withdrawal from Gaza and from 300 square miles of the West Bank is an important first step along the road map and that, in view of the horrendous threats emerging from Iran and elsewhere, Israel has every right to try to defend itself in whatever way it can?

Lord Triesman: My Lords, we welcomed in this House the successful conclusion of the disengagement from Gaza. It was a brave step, done with a good deal of skill and it offers some prospects of further peace being achievable. I believe that the whole quartet, quite aside from us, believes that. I can understand that the Israelis will look at the recent upsurge of violence, including the suicide bombing in Hadera on 26 October, which killed five people and injured a further 55 people, some of them gravely, as being a further and major assault on the security of the state of Israel. These matters have to be kept in balance; progress must be made on both sides.

Baroness Tonge: My Lords, the Minister will know that the building of the illegal wall has effectively ghettoised Bethlehem, with illegal land seizures and families separated from one another. In fact, Bethlehem is now being cut off from biblical sites. Could the Minister acknowledge that that is happening and perhaps tell this House what advice he is giving tourists who wish to go to Bethlehem this Christmastime to celebrate the birth of Christ?

Lord Triesman: My Lords, the travel advice will be issued much closer to the time when we have an appraisal that is completely up to date on the relative security of the visits. We are advising people to travel with extreme caution at the moment, as I have no doubt the noble Baroness knows. I can only repeat on the substance of the question that we believe that the barrier is illegal; it is not being built in convention with international agreements. That is put to the Israelis at all times, notwithstanding their right to ensure that their citizens can go through an ordinary day without the risk of being murdered.

Local Government Finance

Baroness Scott of Needham Market: asked Her Majesty's Government:
	What is their response to the Local Government Association's assessment of the financial outlook for the coming year.

Lord Bassam of Brighton: My Lords, the Government are committed to supporting local authorities in delivering improvements in key public services without imposing excessive demands on their council tax payers. It is important that councils look to manage pressures and control costs. We are continuing to work with the Local Government Association on how to move forward on that agenda. We will shortly be announcing the provisional local government finance settlement for the next two years.

Baroness Scott of Needham Market: My Lords, Ministers were quick to go to the media on Friday to denounce the LGA figures as fantasy. Does the noble Lord accept that this does not go very far in addressing what is now a serious financial problem in essential public services? What steps are the Government taking to put local government finance on to a permanent and sustainable footing so that this annual ritual of claim and counterclaim can be brought to an end?

Lord Bassam of Brighton: My Lords, our record on local government funding is very good, and we build on that year on year. Since 1997 there has been a 33 per cent real-terms increase in government grant. That compares with a 7 per cent reduction in the four years prior to our coming to office in 1997, when the Conservatives were in government. The 2005–06 settlement was the eighth successive year in which the Government had provided local government overall with a real-terms cash increase in government grant above inflation. Government grant was up during that year by £3.5 billion, a 6.3 per cent cash increase.

Lord Laming: My Lords, would it not be to everyone's advantage to get back to a situation where most money raised for local government was raised locally rather than local authorities being seen to be agents of central government and going through the ritual, which has already been referred to, of claim and counterclaim every year?

Lord Bassam of Brighton: My Lords, I can remember a time when that was the case. When I first became a local authority member, around 63 per cent of the money we spent was raised locally. But the funding regime for local government has changed considerably since then and it is the case that somewhere between one-fifth and a quarter of money for local services is generated locally. That is rather different from the days when I first became a member. As to its desirability, we have a sound system now, and we aim to build on that. However, we need to keep these things under review, which is why we asked Sir Michael Lyons to carry out his fundamental review of local government financing.

Lord Tebbit: My Lords, would the Minister care to list the extra burdens and responsibilities that have been placed on local authorities in the past eight years and contrast it with the list—which I think is a little smaller—of the responsibilities and burdens of which they have been relieved?

Lord Bassam of Brighton: My Lords, I listen with great interest to what the noble Lord has to say, but then of course he was a member of a Conservative government who in 1990 burdened local government with one of the most ridiculous systems of local government taxation. All governments, I am sure, pass legislation that adds to a level of local accountability. Most of the measures we have been bringing forward do exactly that and most of those measures have been welcomed by local government.

Lord Greaves: My Lords, on Tuesday of last week the noble Baroness, Lady Andrews, in reply to a supplementary from me, praised many of the local authorities that are making substantial Gershon efficiency savings at the moment. My own authority, Pendle, is in the top 10 of shire districts in the country. However, she did not answer the question I asked her, which was whether, during the coming settlement, the Government intend to claw back any of those efficiency savings, which were made on the promise from the Government that they could be reinvested in services? Will the Minister today give me an assurance that there will be no such claw-back?

Lord Bassam of Brighton: No, my Lords, I am not going to give a specific assurance. It would not be right for me to do so. It would be irresponsible to do so. The general rubric, though, is that efficiency savings should be ploughed back into local services. Certainly, when I was a city leader, that is exactly what we tried to do to improve the standard of services locally.

Lord Harris of Haringey: My Lords, is my noble friend aware that the extra responsibilities which have been placed on local government in the past eight years are a demonstration of the commitment that this Government have to the principles of local democracy and local autonomy? Will he comment on whether the new systems of management, in particular those local authorities that are now run by directly elected mayors, are already showing signs of greater and more efficient use of the resources with which they are provided?

Lord Bassam of Brighton: My Lords, that is a very tempting question. Of course I agree with my noble friend. Many merits can be advanced in support of directly elected mayors. Directly elected mayors are beginning to show the leadership in local government that many of us admire and wish to encourage.

Lord Forsyth of Drumlean: My Lords, on the subject of ridiculous taxes, will the Minister take this opportunity to assure us that the reports which have appeared in newspapers that the Government are thinking of taxing the views or other amenities that properties might have—for example, proximity to golf courses—are complete media fantasy and that the Government have no such plans?

Lord Bassam of Brighton: My Lords, the noble Lord has probably been reading too many copies of the Daily Express or the Daily Mail. I suspect that the noble Lord is confused and that this matter is part of a wider discussion on valuation issues.

The Earl of Listowel: My Lords, in examining the request from local authorities for funding will the noble Lord consider the steeply rising expectations regarding children in state care and foster carers? Given that the chief inspector has, I believe, found that 40 per cent of children placed in foster care are in inappropriate placements, and that 16 and 17 year-olds are being pushed out of foster care prematurely, partly because of the shortage of 8,000 foster carers in England, will he look very carefully at this area?

Lord Bassam of Brighton: My Lords, the Government have well advanced policies in this area. Of course, we keep all these matters under review. We are committing substantial resources to ensure that we get good quality childcare of the kind that I know the noble Earl is particularly proud of.

Assisted Dying for the Terminally Ill Bill [HL]

Lord Joffe: My Lords, I beg to introduce a Bill to enable an adult who has capacity and who is suffering unbearably as a result of a terminal illness to receive medical assistance to die at his own considered and persistent request; and for connected purposes. I beg to move that this Bill be now read a first time.
	Moved, That the Bill be now read a first time.—(Lord Joffe.)
	On Question, Bill read a first time, and ordered to be printed.

Business of the House: Standing Order 41

Baroness Amos: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That Standing Order 41 (Arrangement of the Order Paper) be dispensed with on Friday 18 November to allow the Motion standing in the name of the Lord Goodhart to be taken before the Second Reading of the Estate Agents (Independent Redress Scheme) Bill [HL].—(Baroness Amos.)

On Question, Motion agreed to.

Transport (Wales) Bill [HL]

Lord Evans of Temple Guiting: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That it be an instruction to the Grand Committee to which the Transport (Wales) Bill [HL] has been committed that they consider the Bill in the following order:
	Clauses 1 to 3,
	Schedule,
	Clauses 4 to 17.—(Lord Evans of Temple Guiting.)

On Question, Motion agreed to.

Northern Ireland (Sentences) Act 1998 (Specified Organisations) Order 2005

Lord Rooker: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the order laid before the House on 14 September be approved [4th Report from the Joint Committee and 9th Report from the Merits Committee]—(Lord Rooker.)

On Question, Motion agreed to.

Equality Bill [HL]

Read a third time.
	Clause 9 [Human rights]:

Baroness Walmsley: moved Amendment No. 1:
	Page 5, line 1, after "understanding" insert "among children and adults"

Baroness Walmsley: My Lords, in moving Amendment No. 1, I wish to speak also to Amendment No. 2 with which it is grouped. At an earlier stage of the Bill, we tried to obtain an explicit reference in Clause 9 to the Convention on the Rights of the Child. I set out four main reasons for doing this. The convention is the most ratified of all human rights treaties. It is one of the most comprehensive treaties covering children's rights. Children are uniquely vulnerable and easy to ignore and England's 11 million children, unlike those in the rest of the UK, do not have a rights-based Children's Commissioner. On that occasion I was delighted that the Minister said that she would go away and think about how to ensure that the commission will work for children. That has always been our point—to gain assurances that children will very much be part of this vital new body. The Minister well understands that we are looking for a steadfast guarantee that children will be included in the establishment, operation and review of the commission, and that that will not be left to chance or good will.
	Amendments Nos. 1 and 2, which we are debating today, avoid the problem of lists that the Minister described in her reply. "Children and adults" includes everybody. It could be argued that children are implicitly covered in the legislation. However, I strongly fear that without an explicit reference to children in the Bill the new commission will focus exclusively on adults. Experience shows that, where children are not explicitly provided for in an organisation, they are ignored or given inadequate resources and attention. That is why we have Every Child Matters and the new roles at local authority level of children's services director and lead member for children's services, to make sure that children get their fair share of attention and resources. That is the Government's own agenda.
	Are we satisfied that the existing equality bodies are working adequately for children; that children's issues are part of their strategic planning; that they regularly consult children to find out about their experiences and what matters to them; that their casework includes those under 18; and that they are working with the Government and others to bring about greater equality for children's rights? If children are missing out now, what guarantees have we that they will not be kept to the margins in the future?
	Working for children does not mean simply adapting what is written or done for adults; it means being child-focused from the start—consulting them, setting priorities relating to them, and having the staff and organisational competence to work effectively and systematically to improve their lives. I am reminded that the National Service Framework for Children, Young People and Maternity Services states that, until recently, children's needs in the NHS were seen as no more than,
	"smaller beds and smaller portions of food".
	We can all learn from that.
	Involving children in knowing their rights and responsibilities as young citizens can be an immense power for good—both for them as individuals and for their families, schools and communities. Only this morning, I visited one of UNICEF's "Rights Respecting Schools", Kempshott Junior School in Basingstoke, and saw for myself the benefits—both academic and social—of incorporating an understanding of the convention into their citizenship education. That was at primary level; I was much impressed.
	The UN Committee on the Rights of the Child has produced guidelines on establishing human rights institutions for children. It stresses the participation of children in the work of the institution, the need for tailored programmes to advance their human rights, and urges that:
	"The legislation (establishing the institution) should include provisions setting out specific functions, powers and duties relating to children linked to the Convention on the Rights of the Child and its optional protocols".
	I accept the Minister's assurances that the Convention on the Rights of the Child is covered in "other human rights" in the Bill, but ask that she think again about including a specific reference to children in this Bill setting up the commission. The task in establishing this new commission is not just to make sure children are not left out; it is to plan systematically to put them in. That will mean having a fresh approach and doing some things very differently. I believe my amendments will enable this to happen and I look forward to the statement the Minister promised us at an earlier stage. I beg to move.

Baroness Howe of Idlicote: My Lords, on Report I tried to have the Convention on the Rights of the Child referred to again explicitly, because I wanted to emphasise how necessary it was to include children as central to the commission's work. To have that in the Bill would certainly have encouraged the commission to take a broad approach to children's human rights, and to have regard to all the articles of the convention as well as the general comments and concluding observations of the Committee on the Rights of the Child.
	I appreciated the Minister's point about lists. However, these amendments are a way in which the Bill can refer explicitly to children without opening up that problem. The amendment makes it clear that in promoting and protecting human rights the commission must work for and with children. The amendment ensures that no group is excluded; "children and adults" covers everyone.
	Last week in a speech on citizenship—which I am particularly interested in—the Chief Inspector of Schools, David Bell, reported that one in five schools did not give enough priority to citizenship. He said:
	"Whilst not claiming too much, citizenship can address core skills, attitudes and values that young people need to consider as they come to terms with a changing world".
	I am sure that we all hope that the commission will play a major role in raising awareness among children on human rights and equality, because children are central to creating the kind of society that we all want, which is fostered on mutual respect, understanding and non-violence. As the noble Baroness, Lady Walmsley, said, children have particular communication needs. Information must be tailored to their age and understanding, and it needs to be available in the right places such as schools and health centres.
	A commission will do much more than raise awareness, important though that is. Children comprise one-fifth of the population. The UK has a comprehensive set of human rights obligations to them set out in the Convention on the Rights of the Child and other instruments, and there are increasing concerns about children's asylum and immigration.
	The report this summer from the Commissioner for Human Rights of the Council of Europe, Alvaro Gil-Robles, was critical of those areas of policy, as was the European Committee of Social Rights. There remains a lot to be done to improve UK children's human rights, as demonstrated by the annual review by the Children's Rights Alliance for England and not least by ceasing to imprison children. I am glad to see a Written Answer from the Government in yesterday's Hansard which looks a little hopeful on that point. We hope that the equality commission will be a major force for change in children's lives.
	In considering whether children should be referred to explicitly in the Bill, we must ask ourselves one question. If children are not part of the legislation, will they be adequately and consistently catered for? My fear is that they will not be sufficiently central to the commission's thinking and actions unless they are in the Bill. I hope the Minister can accept the amendments, but if she is unable to do so I hope that she can set out her thinking in some detail on how she expects the equality commission to embed the rights of the child population into its plans and actions.

Lord Morgan: My Lords, I support the amendment and I have three reasons for doing so. First, the Children's Commissioner for England does not have a specific remit on human rights, as he or she should. They are circumscribed in their powers, which rest on the Secretary of State, and in their philosophy because human rights are not brought in. We found some difficulties in this area when we discussed the hitting of children and the so-called "reasonable chastisement" provisions, which have been condemned on human rights grounds by international bodies, particularly in Europe, and against which there was no redress. I would like to improve the situation for children who are born and reared in England.
	Secondly, I would like to safeguard the situation for children who have been born and raised in Wales. Under the Children Act, anomalously, the Children's Commissioner for England can interfere in the work of the Children's Commissioner for Wales. I find it in another context constitutionally bizarre that the Government who have introduced devolution should nevertheless reintroduce the well known tradition, "For Wales, see England". That seems a little out of date. It also means that the role, philosophy and independence of judgment of the Children's Commissioner for Wales—who has a human rights remit, as have the Children's Commissioners for Scotland and for Northern Ireland—may be compromised. Writing children formally into the Bill in human rights terms, which is already done in so many countries across the globe, would strengthen it.
	The final point is that, apart from the practicalities, it is the right thing to do. Surely human rights apply to everybody. We would rear up in protest if human rights were curtailed on the grounds of race or religion, so we should do so on the grounds of age, in terms of people being either too young or, for that matter, too old. We should have equality of treatment and fulfil those aspects of the Bill, especially towards children, who are currently gravely neglected in this area.

Lord Lester of Herne Hill: My Lords, WC Fields had to be reminded that even children are human beings. Speaking as a lawyer, I am quite sure that the amendment is technically unnecessary because children are, undoubtedly, within the ambit of the Bill. However, speaking as a human being rather than a lawyer—the two are not necessarily identical—I can quite see the presentation value of such an amendment. I therefore support it with one caveat, which I will express to my old friend, the noble Baroness, Lady Howe of Idlicote. She spoke twice of children being central to the work of the commission, but all the vulnerable groups are central to the work of the commission. I would not like the commission ever to be captured by one vulnerable group. All of them must have parity of concern, esteem and care. Subject to that caveat, I am in favour of the amendment.

Lord Mackay of Clashfern: My Lords, I suppose that being a lawyer and being a human being are not necessarily mutually exclusive, but I certainly support this amendment. It is important that children are put into the Bill. The other vulnerable groups to which the noble Lord, Lord Lester of Herne Hill, referred are also included, but including children is essential. After all, we have separate legislation for children and I would have thought that it was right that children should be explicitly acknowledged as the subject of these provisions in the Bill. I notice that it is proposed that the Bill will be amended later in relation to the European Community enactment. I cannot see any objection to making explicit this particular group—children—in the Bill on any grounds concerned with lists or the like.

Baroness Ashton of Upholland: My Lords, I am a human being and not a lawyer, although I did receive an honorary law degree yesterday.

Noble Lords: Hear, hear!

Baroness Ashton of Upholland: My Lords, I am very grateful to noble Lords for their applause, if I can call it that.
	Nothing at all divides us on the principle that children are central to the Bill—I take what the noble Lord, Lord Lester, said about what central should mean and the need for all vulnerable groups to be central to the work of the commission. It is absolutely critical that the new commission should promote the rights of children and young people just as it promotes those of adults. I will say a little about what that means in practice because I was much taken with what the noble Baroness, Lady Walmsley, said about wanting the guarantee that that will be crystal clear. I want to bring life to that guarantee so that the noble Baronesses, Lady Walmsley and Lady Howe, will feel confident about what I have to say.
	We are absolutely clear that the new commission must consult with children and young people, and do that effectively. That means working very closely with organisations such as the Children's Rights Alliance, but also in less structured ways to ensure that the needs and priorities of children and young people are part of the priorities and planning of the commission. Innovative techniques will be required in order to engage with young people—noble Lords who have experienced working with children and young people will know that that is essential to ensure that we learn from children and young people what they want and need. That will be critical.
	The commission will also need to address issues of equality and discrimination that directly affect children and young people—as much, as my noble friend Lord Morgan said, as for any other group, including older people. I am sure that your Lordships will know that discrimination legislation and human rights apply equally to all, regardless of age. The commission's job will be to promote human rights, and promote and enforce the equality enactments in relation to old and young alike. It will need to work in a joined-up way with other organisations whose remit covers children, particularly, as the noble Baroness, Lady Walmsley, says, the Children's Commissioner. We expect, want and desire a memorandum of understanding to be agreed between the commissioner and the new commission to ensure that that happens effectively.
	On human rights, the remit will embrace children and young people. For example, the commission's inquiry powers will allow it to look into general discriminatory treatment of children and failure to meet human rights standards. Similarly, the commission will be expected to work with children and young people to tell them about their rights, and how those rights can be protected.
	Noble Lords will know that we build on work that has happened with existing commissions, such as: the work of the Commission for Racial Equality, promoting youth leadership among minority ethnic groups; the EOC's work to combat gender stereotyping in children's early years; and the Disability Rights Commission's running of the educating4equality campaign, raising awareness of new rights for disabled pupils, and its work with the Qualifications and Curriculum Authority to ensure that awarding bodies do not discriminate against disabled pupils. I mention those because they are good examples—not necessarily with the high level of publicity that I would like—of how the commissions are already working. It is our intention to ensure that the new commission will do the same.
	I will probably rue the day that I ever mentioned lists, and my phobia of lists. There is a difficulty with the amendment as it stands, however. I have had a conversation with the noble Baroness, Lady Howe of Idlicote, and say to her and the noble Baroness, Lady Walmsley, that I have tried hard to find a way that I could put this in the Bill that would not run me into difficulties because it would invite everybody to want a list—an issue that we have to take seriously. Also, the difficulty with the amendment is that when I took it to parliamentary counsel, they advised me that it would cast doubt over whether children were covered in the other provisions of the Bill. I know that is not the intention of the noble Baroness, Lady Walmsley. It could also, of course, narrow the scope of the clauses concerned, in that the commission could undertake its activities only with individuals, and not with public authorities and other bodies at a corporate level. I could not accept it if I wanted to, because it would not do.

Lord Lester of Herne Hill: My Lords, am I right in thinking that when Clause 9 refers to "human rights", it definitely refers to the rights conferred by the children's rights convention?

Baroness Ashton of Upholland: My Lords, the noble Lord is absolutely correct.
	I would like to say three things. First, I give you the guarantee that the commission will be promoting and working with and for children. Secondly, I will suggest to my honourable friend Meg Munn, who has responsibility for this policy and who I know will be delighted, that she meet with the noble Baronesses, Lady Walmsley and Lady Howe of Idlicote, to have one more go at looking at what might be done. As noble Lords will know, I take this issue very seriously. Thirdly, in the work that we do in establishing the commission, I will commit to come back to the House and ensure that we are very clear about how the commission is going to work with children.
	Nothing divides us on this issue. I am fully committed to ensuring that the commission works closely with and for children. I simply cannot accept this amendment for the technical reasons I have given. I do, however, commit the commission and give the guarantee unreservedly.

Lord Morgan: My Lords, the Minister has cited the opinion of parliamentary counsel, saying that if one put "children" in this part of the Bill it would have to be written in elsewhere. Why can it not be done more generally? I do not see the obstacle, intellectually.

Baroness Ashton of Upholland: My Lords, as my noble friend Lord Morgan will know from earlier stages of the Bill, one thing I am keen to avoid is ending up with our having to ensure that we have covered every single group covered by the commission in every aspect of the Bill. The noble Lord, Lord Lester of Herne Hill, made it clear that the job of the commission is to work to protect effectively some of the most vulnerable groups in society. I am always anxious to avoid giving an impression in legislation that, because we have not written everybody else in, they are somehow not covered.
	I was searching, working hard with very committed officials, for somewhere in the Bill where I could make the point without running the risk that I have just outlined. I cannot find it. These amendments do not work technically. I have made my commitments and believe that the noble Baroness, Lady Walmsley, will be comfortable with them because they are as strong as any commitment one will ever get from the Government. They are genuine commitments and I hope, on that basis, the noble Baroness will feel able to withdraw her amendment.

Baroness Walmsley: My Lords, my ambition in life is to satisfy parliamentary counsel in the drafting of an amendment. I have not yet succeeded. However, I am most grateful to the Minister for her reply and for the support for the amendment from around the House. How strongly the House feels about this issue is clear from the views expressed. I am grateful for the Minister's reassurances. I am sure that the noble Baroness, Lady Howe, and I will be happy to take up her suggestion of meeting her colleague, Meg Munn. I accept what she said about the deficiencies of the amendment. The statements that she made are some of the strongest that we might have expected from a Minister on a subject such as this. We will certainly look for a review at some stage of how the commission is working for children, and the Minister has just promised us one. She will accept that it is our experience that if children have not been specifically mentioned, resources and attention have not always followed. Therefore, her invitation to review how well the commission is working on children will certainly be taken up by the children's mafia in your Lordships' House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 2 not moved.]
	Clause 14 [Codes of practice]:

Lord Alli: moved Amendment No. 3:
	Page 7, line 39, at end insert—
	"(ea) regulations under Part 2A of this Act,"

Lord Alli: My Lords, in moving Amendment No. 3, I shall speak also to Amendments Nos. 4, 10, 41, and 45. I say to the noble Baroness, Lady Walmsley, that I have satisfied her ambition before she has, because parliamentary counsel are very happy with my amendments.
	I am sure that noble Lords will recall that on Report on 19 October, I moved an amendment asking the Government to look again at the possibility of extending the protections proposed for religious groups against discrimination in goods, facilities and services to the lesbian and gay community. I was truly grateful for the support I received, not just from those who spoke but from colleagues on these Benches. The Government have always maintained that it would be impossible to do the necessary consultations and establish the need for those protections during the passage of the Bill. This amendment, which is supported by my noble friend Lord Smith of Finsbury and the noble Lord, Lord Lester of Herne Hill, allows the Secretary of State to make a regulation to correct this mischief on the face of the Bill while giving sufficient time for consultation.
	I do not intend to make a long speech. The Government have been most generous, and I hope that we have found a way to satisfy them as well as thousands of gay men and lesbians who will benefit from these provisions when they are eventually enacted. In anticipation of a favourable response from the Front Bench, like a Hollywood actor at one of those Hollywood ceremonies, I would like to say a few thank yous, and I may possibly shed a tear. I would like to thank my agent, Stonewall, for all its help in drafting and moving this amendment. I would definitely like to thank noble Lords on the Back Benches for their continued strong support for gay and lesbian rights. I would like to thank my noble friend Lord Smith of Finsbury who, less than half an hour after he delivered his maiden speech, stood up to speak in support of these amendments. I thank the noble Lord, Lord Lester of Herne Hill, who has seen this through with diligence and patience. My noble friend Lady Turner of Camden has always been in her place, not only during these debates, but during every piece of equality legislation that I have witnessed in this House. Of course, I will save the final thank you for my colleagues on the Front Bench until I have heard what they have to say.
	It has been a real thrill and a privilege to be part of this mini drama. I beg to move.

Lord Smith of Finsbury: My Lords, first, I support my noble friend Lord Alli in proposing his amendments. In the 21st century it cannot be right for people to be discriminated against in going about their lives, in buying or making use of goods and services, simply on the ground of their sexual orientation. Worse than facing that discrimination is the existence of discrimination in the law which gives a green light to those who seek to act out their discrimination in rather more violent ways, as sadly we have witnessed in the past few weeks. Therefore, it is incumbent on all of us to ensure that the law does not discriminate and that practice is not allowed to discriminate. These amendments will secure that objective and I strongly endorse and support them.
	Secondly, as I do not have my noble friend's ability to speak after the Minister, I want to thank, in anticipation, my noble friends on the Front Bench and their right honourable friend the Secretary of State for the very constructive way in which they have sought to accommodate the principles and the feeling on these Benches and across the House.
	Thirdly, in drawing up the regulations that we hope will arise if these amendments are passed, I ask that Ministers will be expeditious, that they will ensure that the consultation takes place, as is only right and proper, and that as soon as that consultation has taken place they will seize an early opportunity to put the regulations in place. Those ambitions have too long been unfulfilled. I look forward to the day when, with the help of my noble friends on the Front Bench, they will indeed be fulfilled.

Baroness Miller of Hendon: My Lords, I hope that the noble Lord, Lord Alli, will also feel able to thank me. I have every sympathy with the objectives that the noble Lord seeks to achieve with these amendments. I am certain that there should be no discrimination or harassment against anyone on any ground whatever, including sexual orientation. I also believe that the noble Lord will agree with me that respect has to be given to the susceptibilities of others on genuine—I stressed the word "genuine"—and deeply held religious beliefs. I am sure he will agree with me as his Amendment No. 41 states in subsection (3)(e):
	"provides for exceptions (whether or not of a kind similar to those provided for by Part 2 of this Act or any other enactment relating to discrimination or equality)".
	I very much hope that the noble Baroness will take reasonable and long-held religious views into account when drafting the regulations. While Amendment No. 41 says, in reference to regulations, that the Secretary of State "may" make regulations about discrimination or harassment on grounds of sexual orientation, there is clearly no compulsion. I hope that the noble Baroness is able to do that.

Lord Lester of Herne Hill: My Lords, I am very privileged to find myself supporting the noble Lords, Lord Alli and Lord Smith of Finsbury, on these amendments. With the benefit of foresight, rather than hindsight, it was clearly a mistake for the Government to introduce religious discrimination without introducing sexual orientation discrimination at the same time. That is water under the bridge. The great virtue of these amendments is that both kinds of unfair discriminatory treatment will be covered in legislation. I hope that the Minister will be able not only to accept the amendments but also to tell the House about the Government's timetable and the consultation so that we can have some idea whether this will happen sooner or later, without committing the Government to any particular dates.
	Finally, I listened to the noble Lord, Lord Alli, in the best tradition of this House, spreading flattery and adulation across the House. I remind him and the House of what happened in the 19th century. There were two great constitutional historians; one called Freeman, and the other called Stubbs. They kept writing reviews of a flattering kind about each other's books. One day a wag wrote:
	"Ladling butter from alternate tubs, Stubbs butters Freeman, Freeman butters Stubbs".
	We all do it; and so much the better.

The Lord Bishop of Newcastle: My Lords, I too welcome the principle of non-discrimination on the grounds of sexual orientation and its extension into the areas of goods, services, facilities and premises. I am pleased that these amendments have been tabled today. I have one concern, which is not about the objective of the amendments but about the method being used. It is about the interface between the right not to be discriminated against on the one hand and the right to freedom of religion on the other. That interface can be a complex and sensitive matter. So there needs to be a careful balancing exercise. That is perhaps best achieved by having a careful period of parliamentary scrutiny.
	Therefore, I wonder whether legislating by this means of simply being subject to affirmative resolution on a take it or leave it basis provides the opportunity for the kind of scrutiny which I think would be helpful. I do not question the objective of these amendments; I simply ask about the means by which we seek to achieve it. If the amendment is successful, as I hope it is, perhaps the Government will agree to engage in early discussions with the Churches and other faith communities on how their interests can be reflected in the provisions.

Baroness O'Cathain: My Lords, like the right reverend Prelate the Bishop of Newcastle, I welcome the principle of non-discrimination on the grounds of sexual orientation. However, I oppose the amendments because they contain no guarantees of proper religious protections, which means that there could be alarming problems for Churches and religious organisations.
	The amendments empower the Secretary of State to use secondary legislation to address sexual orientation discrimination. Under the wording of the amendments the regulations could include religious protections, but I am told that that is not required. Maybe they will; maybe they will not. If there are protections, what will they be? We do not know. There is uncertainty on this issue.
	There might be circumstances in which a religious group may want to refuse a service because of its religious ethos. Church membership, for example, is often denied to people who do not accept the basic, ethical teaching of the Church—in much the same way as membership of a political party is denied. Religious groups must have protection against legal actions designed to attack their doctrinal convictions. I believe that that is a very serious point.
	I have been contacted by the right reverend Prelate the Bishop of Winchester. He wanted to be here to speak to these amendments but has been unavoidably delayed in Winchester. His view is that these amendments have come much too late in our proceedings to allow proper consultation with those religious groups that would want to have their say about how this would be implemented. He is concerned that legislating by secondary legislation does not allow the opportunity for the proper parliamentary scrutiny that a Bill would allow. Here I echo what the right reverend Prelate the Bishop of Newcastle said.
	The right reverend Prelate the Bishop of Winchester feels the whole thing has about it—in his words—"the same whiff of social engineering which was present in the wording of Clause 3, which talked about the creation of a society". The simple fact is that these amendments do not contain any religious protections, nor do they guarantee that they will be provided. That is why I do not support them and would like to hear what the Minister has to say.

Lord Stoddart of Swindon: My Lords, like the noble Baroness, Lady O'Cathain, and the right reverend Prelate the Bishop of Newcastle, I, too, am concerned about the detail that will presumably be brought in by affirmative order. It is not absolutely clear whether an affirmative order will be involved. I hope the Minister will confirm whether affirmative or negative procedure will be used.
	I believe that everybody is agreed on the principle of equality; nevertheless, the details could be very worrying indeed. It is a question not only of religion but of the operation of the regulations and laws which will come about. The law of unintended consequences could very well come into play in this field.
	For example, these laws will—I am seeking information here—presumably apply to people providing a couple of rooms for bed and breakfast. If I am wrong, perhaps I could be corrected. It may very well be that the person providing bed and breakfast has religious objections to people living as lesbians or homosexuals. In that case, she will presumably be criminalised if she refuses to give them a room overnight. I would like to know about that, for example, because we are talking about ordinary people now, not great hotel chains or other, larger, establishments. These are some of the problems that I can foresee.
	The problem with proceeding now on the basis of this amendment—which will undoubtedly go through—is that when regulations come to us by affirmative or negative order, we can discuss them but we cannot amend them. We cannot add or subtract; all we can do is agree or disagree. In a matter as sensitive as this, we perhaps ought to consider whether there is another way of dealing with this problem. It is probably too late now, and I apologise for coming late to this matter. I had not wanted to intervene, but now that I have seen the amendments, I can see that there are some difficulties. I do hope that, because I have raised these difficulties, I will not be discriminated against on the basis that I might be, although I am not, homophobic.

Baroness Turner of Camden: My Lords, I would like to congratulate my noble friend Lord Alli on the persistence with which he has campaigned for the rights of gay and lesbian people. I have done my best to support him from these Benches. I am very glad that, this afternoon, we on this side of the House are supporting what I think is a first step towards achieving non-discrimination on grounds of sexual orientation in respect of this group of people.
	We have been talking about this issue for a very long time; it has been repeatedly discussed in this House, and there has been support from all sides of the House. I really think that it is about time that we passed this amendment and got on with the task of ensuring that, in future, people in this group are neither discriminated against nor harassed. Discrimination and harassment against groups of people on grounds of sexual orientation should be totally outlawed. I hope that we shall pass these amendments this afternoon and take a great step towards achieving that objective. I fully support these amendments.

Earl Ferrers: My Lords, the noble Baroness says that she is in favour of not discriminating against people, which is a view shared by everyone. The noble Lord, Lord Stoddart, made a very important point. As I understand it, these decisions will come up in regulations and cannot be amended: they can only be accepted or rejected. As your Lordships know, it is not the convention to reject orders in this House. The right reverend Prelate the Bishop of Newcastle correctly said that there is a right not to be discriminated against. There is also a right for freedom of belief. I believe that many people will find there are more problems in the detail than there are in a general feeling that you should not be discriminated against.
	The noble Lord, Lord Alli, said that the Government have been very generous and that many gay and lesbian people will benefit. I am sure that that is so. He had a touching catalogue of thanks for people to whom he wanted to express gratitude in the apparent belief that this matter was all over and done with. It reminded me of those people who write begging letters at the end of which, they say, "Thanking you in anticipation". The noble Lord is premature in his thanks. Whatever the views of individuals about discrimination, we should give more time to considering the effects of this amendment.
	My noble friend Lady O'Cathain said that the new amendment covers the possibility of religious protections, but they are not required to be protected. There are examples such as a church hall being let out to gay rights activists. The church could refuse to hire its hall possibly to a Jehovah's Witness, under exemptions in Part 2 on religion, but it could not refuse to hire it to a gay Christian group. That would be sexual orientation discrimination. Even if protections are included in the regulations, because they are only secondary regulations, gay rights groups could go to court to try to have them excised. That is unlikely to happen, but it is a possibility.
	We should think about what we are putting into primary legislation before we go that far. For example, a private hospital provides fertility services to infertile couples in line with its publicly stated Roman Catholic pro-life beliefs. It is perfectly reasonable to have those beliefs and to do that. But along comes a lesbian who applies for treatment and is refused. She could argue that the hospital has discriminated against her in the provision of services. Religious hospitals or organisations could be prosecuted for their religious beliefs and for applying them in the way they think is correct.
	I am glad that the noble Baroness is smiling. That is always very encouraging. I really believe that there is more in this than writing, at the very last moment, something fairly fundamental into the Bill. I hope that the noble Baroness will assure us that more thought will be given to that. If we are not given that assurance, we will have to see what happens.

Baroness Lockwood: My Lords, I fully support these amendments. I am a little surprised at the way in which the debate is going. Perhaps I should not be surprised, because the kind of thing that is being said now is the kind of thing that has been said every time non-discriminatory legislation goes through Parliament. Fears are raised which are found to be groundless. Arguments are put forward that do not stand up to scrutiny. When an Act is placed on the statute book, we behave in a sensible way in interpreting the legislation. There is understanding that, initially, there might be a few difficulties in coming to terms with some of the minutiae. But we get over those problems. This issue has been before Parliament on a number of occasions, even before this Bill. It has been raised at every stage of the Bill's passage, and there has been ample opportunity to discuss the basic principles and some of the implications arising from it. After previous discussions in the Chamber and consultations with the Government we have come up with a series of fair amendments that meet all the objections. They will work in a practical way when the Bill is given Royal Assent.

Baroness O'Cathain: My Lords, before the noble Baroness sits down perhaps I may say that the point that I raised about protections has not been discussed.

Lord Waddington: My Lords, I join those who have already expressed concern about the amendments. No one who has followed the Bill's progress through the House can doubt that when legislation seeks to make discrimination or harassment unlawful very complicated issues arise. I am sure that I am not alone in worrying about an amendment dealing with such discrimination being put before the House at this late hour, and by the suggestion that the law should be changed by regulations that cannot be amended. I hope that the least we can expect from the Government is that there will be extensive consultation before regulations are brought before the House. Perhaps the matter could be dealt with in that way. Some of our fears would be alleviated if we had the opportunity to see the shape of the regulations before they are put before the House for a vote. I agree entirely with my noble friend Lady O'Cathain that one would wish to see that the regulations provided some safeguards for religious communities.

Lord Tunnicliffe: My Lords, I support the amendments and urge the House not to undervalue its own powers of scrutiny of secondary legislation. There is a Select Committee of the House—the Merits of Statutory Instruments Committee, established 18 months ago. It now has significant influence. We examine every statutory instrument and bring a small number of them to the attention of the House. Departments are properly fearful of bringing forward orders that have not had proper consultation and cannot satisfy all the assurances sought by your Lordships. A couple of us from the committee are here today, and we shall look out especially for those orders to ensure that the assurances given by the Government have been fully carried out. If not, the House has the power to vote the measure down. Do not underrate the power of secondary legislation. We should support it by expressing concerns and ensuring that there is full consultation. I have every faith that that will happen, and the House has the power to ensure that it does.

Lord Mackay of Clashfern: My Lords, I welcome those developments, which make it possible to examine the provisions of subordinate legislation a good deal more fully than was possible in the past. I agree that there are difficult questions in drafting the regulations that will implement the amendments if they become part of the Bill. I assume that the Minister will undertake that nothing in the regulations will criminalise the practice of a person's faith in relation to the matters that may be the subject of the regulations.

Baroness Richardson of Calow: My Lords, I should not want the House to assume that all those with a religious faith are automatically against such provisions being in the Bill. I support the amendment.

Baroness Ashton of Upholland: My Lords, this has been an interesting debate, and I could have predicted that these issues would be raised. I shall try to address them on behalf of the Government.
	There is no question of a late-hour amendment. Throughout the passage of this Bill, I have met with every noble Lord who has put down an amendment in order to make sure that we have the right kind of dialogue. I think that every noble Lord would agree with that. So, as amendments emerge during the passage of the Bill, the Government are usually fully aware of what the amendments are about and why they have been proposed. Noble Lords will know that, at every stage of this Bill, this issue has been raised on all sides of your Lordships' House with real strength of feeling. I have also seen that today. Despite the reservations, the underlying principle behind the amendments commands huge support in your Lordships' House, and rightly so.
	It was precisely because of the concerns that were raised that the Government were unable and unwilling to accept the amendments that came before your Lordships' House at the previous stage. As the noble Lord, Lord Waddington, said, consultation is a critical part of the development of the regulations. In a sensitive area such as this—we accept that it is—it is very important that we make it clear that we need to consult. We need to consult those who have a religious conviction; we need to consult those who have been discriminated against; we need to consult business; we need to consult all those who provide the services that we are seeking to regulate.
	I smiled at the comment of the noble Earl, Lord Ferrers, about religious hospitals. It was not the "religious" but the "hospital" bit at which I smiled. It is difficult to imagine a hospital refusing a service to anybody. I take serious issue with that.
	It will be an affirmative process. We want the maximum amount of consultation. We are not in the business of trying to criminalise individuals for strongly held beliefs. We are in the business of making sure that people cannot be discriminated against when that is inappropriate. I am extremely grateful for the tenacity of my noble friend Lord Alli, supported by his noble friend Lord Smith, the noble Lord, Lord Lester, and many other noble Lords on our Benches and other Benches, who worked incredibly hard to see what we could do in the Equality Bill that could support our belief that it is unacceptable to discriminate on grounds of sexual orientation.
	It is the Government's intention to accept the amendment. It is an important moment because it will lead to an important change in the law. It will lead to much-needed protection against discrimination in areas of life where gay men and lesbians have suffered the kind of injustice and unfairness that can blight lives. It will lead to regulations that will mean that gay men and lesbians will no longer need to put up with discriminatory treatment in hotels or bars, in the financial services sector or in other services provided by the public and private sectors. Anyone who suffers such treatment will in future have the protection of the law. These changes can have a real impact on daily lives. They are one more step towards the society based on fairness and social justice that I believe every Member of your Lordships' House and certainly every member of this Government seeks. It will be another important step on the road to the comprehensive rights that the Government have sought to provide for gay, lesbian and bisexual people.
	I congratulate my noble friend. I have listened with great care to the concerns that have been raised. We will be very mindful of the sensitivities involved. We will consult properly and widely. Your Lordships will have the chance to see what is happening for it will be done in a transparent and open way. I say to noble Lords who have concerns, "Please don't have the concerns; we will do this properly". We want to do it for the benefit of our entire society, but especially for those who have been discriminated against for far too long. It is a privilege to accept the amendment.

Earl Ferrers: My Lords, perhaps I may intervene before the Minister sits down. It is commendable that she said that there will be full consultation. Indeed, she has been studiously concerned with consultation throughout. But if one consults with somebody who has one set of views and somebody who has another set of views, eventually the Government have to make their mind up. Once their mind is made up, what they decide appears in the regulations. Once the regulations are made, Parliament cannot easily alter them. Does the Minister agree?

Baroness Ashton of Upholland: My Lords, the purpose of the consultation is to look at why people have strongly held views, the services they provide, the way in which this would work, and to reach—as far as we possibly can—an appropriate and consensual approach. Eventually, Parliament will have its day to look at the regulations. I suspect that my right honourable friend the Secretary of State for Trade and Industry will determine that there will not be one big group of regulations. Rather, the consultation will take place over a period of time. The timetabling issues will be for my honourable friend Meg Munn to work out. I am sure more of such detail will emerge as the Bill reaches another place.
	Have no fear; we will ensure that what comes before your Lordships' House is properly thought through. The Government will take a view, but Parliament will have its chance too.

Lord Alli: My Lords, first I thank the Minister for her kind words, and reiterate how pleased we are that the Government could accept these amendments. Subject to the noble Earl, Lord Ferrers, I would like to thank the noble Baroness, Lady Miller, for her contribution—not just today but, in brief, on 19 October. She made her support perfectly clear then.
	In a sense, the arguments put forward today give all the justification one needs for this amendment to go through. Prejudice lives on. The argument for equality goes something like this. "We all want equality; it's a great thing. But, you know, if we're a religious organisation, we should still be allowed to discriminate against gay people". That has always been unacceptable to me. The quicker it changes, the better. I understand that there are deeply held faiths, and problems. I hope that during the consultation period, those come through and are discussed. But be in no doubt; the view held, I suspect, by the vast majority of noble Lords on this side, and in my party, remains that equality is not negotiable. It is an absolute.
	I hope the Minister can pass on my thanks to her right honourable friend the Secretary of State for Trade and Industry for his personal intervention, and the way in which he has handled this matter. I want to thank the noble Baroness, Lady Scotland, who has been at the Dispatch Box more than once to listen to our arguments with her usual courtesy and frankness. I also want to thank the noble Baroness, Lady Ashton, who, throughout the Bill—not just on these amendments—has listened and acted. That is an important role to play. I sense that the debate is finished.

On Question, amendment agreed to.
	Clause 27 [Conciliation]:

Lord Alli: moved Amendment No. 4:
	Page 15, line 32, at end insert—
	"(da) a provision of regulations under Part 2A of this Act corresponding to section 66 below,"
	On Question, amendment agreed to.
	Clause 28 [Legal assistance]:

Baroness Ashton of Upholland: moved Amendment No. 5:
	Page 17, line 40, at end insert—
	"(11) A reference in this section to a provision of the equality enactments includes a reference to a provision of Community law which—
	(a) relates to discrimination on grounds of sex, racial origin, ethnic origin, religion, belief, disability, age or sexual orientation or to equality of opportunity between men and women, and
	(b) confers rights on individuals.
	(12) In its application by virtue of subsection (11), subsection (1)(b) shall have effect as if it referred to an allegation by an individual that he is disadvantaged by—
	(a) an enactment (including an enactment in or under an Act of the Scottish Parliament) which is contrary to a provision of Community law, or
	(b) a failure by the United Kingdom to implement a right as required by Community law."

Baroness Ashton of Upholland: My Lords, the purpose of this amendment is to enable the commission to support proceedings alleging that domestic legislation is incompatible with EC law in equality between men and women, or EC legislation combating discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. This covers provisions under Articles 13 and 141 of the EC Treaty, such as the Equal Treatment Directive, the Equal Pay Directive and the race and framework directives based on Article 13.
	As the Bill is currently drafted, the commission will be able to provide assistance only where the proceedings relate wholly or in part to one or more of the equality enactments. These, as noble Lords will know, include all the domestic legislation prohibiting discrimination, such as the Sex Discrimination Act 1975 and the Race Relations Act 1976, as defined in Clause 33 of the Bill. There is therefore no provision for the commission to support an individual alleging, for example, that they have been disadvantaged by other GB legislation which they believe to be incompatible with EC equality and discrimination law. However, that is less extensive than the powers that are currently available to the Equal Opportunities Commission as a result of case law. As some noble Lords know very well, about 10 years ago a case was brought and won by the Equal Opportunities Commission. It concerned the adverse impact on women of certain employment legislation provisions that required two years continuous employment for full-timers to qualify for unfair dismissal and redundancy payments but five years for part-timers, who are of course mostly women. The courts were asked to consider whether those provisions were compatible with community law. The Law Lords found for the Equal Opportunities Commission, which had brought the case for a judicial review, but expressed the view that individual claimants should bring their claims not by way of judicial review but before an employment tribunal, supported by the Equal Opportunities Commission.
	If we do not amend the Bill in that way, the new commission will not be able to support an individual bringing a similar case. That would mean that the new commission would have fewer powers than the Equal Opportunities Commission, which, as the House will know, has never been our intention. This amendment will enable the commission to do this to support a case in which an individual alleges that they have been disadvantaged by other legislation that they believe to be incompatible with EC equality and discrimination law. I commend the amendment to your Lordships' House and beg to move.

Lord Lester of Herne Hill: moved, as an amendment to Amendment No. 5, Amendment No. 6:
	Line 4, at end insert "or national"

Lord Lester of Herne Hill: My Lords, in moving Amendment No. 6 and speaking to Amendment No. 5, I shall speak also to Amendments Nos. 7 and 8. The Minister explained clearly the object of the amendment, which I strongly support. It ensures non-regression; that is, it ensures that what the EOC can do will be able to be done by the new commission. There is just one snag, which comes from the problem of lists. I can see the Minister scowling but nevertheless I must deal with it.
	The snag is that the way in which Amendment No. 5 is drafted does not properly reflect the EU race directive or the Race Relations (Amendment) Act 2000, so it does not properly reflect community law with regard to the other commission—the CRE. That is why my Amendments Nos. 6, 7 and 8 have been tabled, to fill the gap in the Government's amendment. To be clear, under EU law, nationality discrimination is forbidden, which is why Amendment No. 6 would add the word "national" and Amendment No. 7 includes the words "nationality (including citizenship)". That reflects both the race directive and the Race Relations (Amendment) Act 2000. That is why my Amendment No. 8 would include equal opportunity "between different racial groups", as between men and women.
	This problem goes back to the well known problem that the noble Baroness, Lady Ashton, refers to often—the problem of having lists. The moment you have lists, you find that you may leave something out. It is important that the race side of the question has not been properly dealt with. I would not be surprised at all if the Minister were to say that the matter needs to be thought about further and dealt with in the other place. I should be entirely content with that—but I want to get right these provisions about giving assistance, as a matter of Community law. I beg to move.

Baroness Ashton of Upholland: My Lords, I thank the noble Lord, Lord Lester, for his amendments to the government amendment. He and I have discussed them on a couple of occasions and he knows that I cannot accept his amendments today. It is not only the list issue—and I regret having set myself up in that regard. The list in paragraph (a) of the government amendment intends to reflect the body of Community law associated with Article 13 of the Treaty of Rome. National origin, nationality and citizenship are not included in the concepts in Article 13 and thus are not included in the body of the amendments. We cannot consider them at the moment, because, as the noble Lord knows from when he tabled his amendments, I have not been able to explore and get cross-government agreement. That is why I cannot move on that at this point. I have, however, asked my officials to continue to work with the noble Lord on these matters, and they are delighted to do so. They will talk to the noble Lord, and I expect us to make progress as the Bill moves into another place. The points are well made by the noble Lord—I am just not in a position to get the agreements I would need.
	I sympathise entirely with the intention behind Amendment No. 8. It appears from the government amendment that we have given undue attention to equality of opportunity between men and women at the expense of other groups. That was not our intention. We consider that the reference in the amendment I have proposed to discrimination on the grounds of sex, racial origin or ethnic origin and other factors implies equal equality of opportunity for the groups concerned. Our intention in making explicit mention of equality of opportunity for men and women is to ensure that equal pay issues were clearly included within the body of relevant Community law. I accept the point, but I cannot accept the drafting. If the noble Lord will permit me, I will take this away, and the Government will propose at a later date some alternative drafting that gives effect to the intention he is seeking. On the basis that we will certainly look at Amendment No. 8 and that we will continue to work with the noble Lord on the other two amendments, I hope that he will feel able to withdraw his amendment today.

Lord Lester of Herne Hill: My Lords, the advantage of not being in government is that you can move quickly. The disadvantage of being in government is that it reminds one of the prehistoric animal called the diplodocus. Noble Lords will remember that if you trod on this beast's tail, it took five seconds for the message of pain to reach its head. The problem is that one has to consult widely, and I sympathise with that.
	I want, with respect, to correct one thing. It is not just a question of Article 13 of the Treaty of the European Union. The four freedoms—freedom of labour, of services, and the other freedoms—that were under the original treaty, not under Article 13, must all be enjoyed without discrimination based on nationality. That is why one needs to put this right. But I appreciate that there needs to be further consultation across Whitehall and I hope that the diplodocus will eventually move in the other place. On that basis, I beg leave to withdraw the amendment.

Baroness Ashton of Upholland: My Lords, before the noble Lord sits down, I thank him for the correction. I will feed that back. Whenever he treads on my toes, I feel the pain instantly.

Amendment No. 6, as an amendment to Amendment No. 5, by leave, withdrawn.
	[Amendments Nos. 7 and 8, as amendments to Amendment No. 5, not moved.]
	On Question, Amendment No. 5 agreed to.

Baroness O'Cathain: moved Amendment No. 9:
	After Clause 32, insert the following new clause—
	"LEGAL ASSISTANCE FOR PERSONS OR ORGANISATIONS BEING INVESTIGATED ETC. BY THE COMMISSION
	(1) This section applies where the Commission is—
	(a) conducting an investigation under section 20, or
	(b) issuing an unlawful act notice under section 21, or
	(c) making an application to a court under section 22(6), or
	(d) making an application to a court under section 24, or
	(e) bringing proceedings under section 25, or
	(f) giving legal assistance to an individual under section 28, or
	(g) bringing an application for judicial review under section 30, or
	(h) issuing a compliance notice, or making an application to a court, under section 32.
	(2) In a case to which this section applies, where the defendant in a court or tribunal case or the subject of the notice or investigation is—
	(a) an individual, or
	(b) a charity, or
	(c) an organisation of the type mentioned in section 57 of this Act,
	the individual, charity or organisation shall be granted legal assistance paid for out of central funds to enable them to respond to the case, the notice or the investigation.
	(3) The Lord Chancellor shall make regulations providing for payment out of central funds for the provision of such legal assistance.
	(4) The sections listed in subsection (1) of this section shall not come into force until the regulations mentioned in subsection (3) have been laid before and approved by resolution of each House of Parliament."

Baroness O'Cathain: My Lords, I return briefly to my concerns about providing some form of legal aid for charities and religious groups who find themselves on the wrong end of legal action backed by the new Equality Commission.
	I am grateful to the noble Baroness, Lady Ashton, who took time last week to discuss my concerns. She is a brilliant Minister who makes you feel she is listening to you—and I know she is. Even when she declined to amend the Bill to meet my concerns, she still managed to make me feel as if I was coming away with something. That is quite a skill. Not only does she deserve the honorary degree she received yesterday, on which I congratulate her, but if there were such a thing as an honorary degree in diplomacy she should get that too.
	However, I remain anxious that, in a legal action over a controversial issue of religious liberties, the enormous financial and legal resources of the commission could be ranged on one side of a legal dispute, leaving a defendant on the other side with limited financial resources at a considerable disadvantage. A church or religious charity being sued would be left passing round the offering plate to raise money to pay lawyers. In these circumstances, even a bad case could make a lot of progress. It could even succeed. The inequality of resources could result in a miscarriage of justice.
	The noble Baroness, Lady Ashton, does not think that I need to be concerned about any of these things. She does not believe that the commission would ever use its legal powers other than in the most gross and obvious case of discrimination that everyone would think deserved to be outlawed. I hope she is right. But the noble Baroness came to my aid and suggested that if I tabled these amendments she would make statements on the record which would, if I understood her correctly, give a steer to the commission to ensure that it does not use its legal powers in inappropriate ways against religious charities. I am happy to do so.
	I will sit down and invite the Minister to give her reassurance before withdrawing my amendment. But before I do so, I ask the Minister to respond to a particular argument that I raised on Report. I have received legal advice which suggests that, where human rights issues are at stake, creating a massive inequality in legal resources between the parties—as the Bill does by providing legal assistance to one side but not to the other—may breach the European Convention on Human Rights. I should be very grateful to hear the Minister's response to that legal argument. I beg to move.

Baroness Ashton of Upholland: My Lords, I am very grateful to the noble Baroness for giving her time last week to discuss these issues. I sought to reassure her and I intend that the noble Baroness goes away with something. We do not expect the commission to pick on organisations or to deal with them inappropriately. I am determined—as I am sure are colleagues across government—that the way in which we set up the commission will ensure that it is very clear about its work and focus.
	The noble Baroness is absolutely right to consider that that is all well and good but to ask what would happen if the situation which she mentioned occurred and to ask what safeguards would be in place. I sympathise with the noble Baroness's concern that small organisations, whether charities, religious charities or small businesses, fear being treated inappropriately and oppressively by the commission. However, as I said, we need not fear that happening. The Federation of Small Businesses warmly welcomes the commission, as have many other organisations, including faith bodies and charities. However, I shall explain some of the processes involved and I hope that will enable the noble Baroness to feel more comfortable about the measure.
	I asked officials to scale up what is spent by the commissions at present on supporting legal cases in employment tribunals, which is where the bulk of these issues are dealt with. The relevant figure is about 4.5 per cent, which is not huge given that supporting legal cases in employment tribunals is a core, fundamental part of the commissions' work. I believe that it is about right. In a budget of £70 million—if the officials have done their arithmetic correctly, which I am sure they have—the relevant figure is just over £3 million. About 250 significant cases are supported by the three commissions every year. I believe that figure will apply also to the new commission. Therefore, we are not talking about huge resources or huge numbers of cases. However, part of the fundamental purpose of the commission is to support cases as it will tackle discrimination where it arises.
	The first safeguard is that the commission's job is to be sensitive to its stakeholders. If it fails to do that, it will lose authority and support. Sensitivity to stakeholders includes the fact that the commission needs to think very carefully about how it uses its resources. We have not set out in the budget particular sums that need to be spent on X or Y in view of the concept of independence that we discussed previously. However, it is very important that those involved in the commission, and those, including Parliament, who set it up, feel confident that it is using its resources efficiently and well. That is an important safeguard. As noble Lords will know from the Bill, the commission will need to consult on its strategic plan, including its legal and regulatory strategy. That is also an important safeguard.
	However, I recognise that a small organisation could find itself defending an action brought by the commission. However, the checks and balances in the system ensure that a body in that situation is not disadvantaged. As the noble Baroness and I discussed—I know that the noble Baroness accepts this—most of these discrimination proceedings are brought in employment tribunals. Over the years employment tribunals' processes have increasingly been designed to ensure that the procedures which are used are very straightforward. We make formal representation unnecessary. In addition, in both the courts and tribunals clerks or judges or tribunal members themselves would seek to assist a person who was unrepresented with matters of procedure. If a case brought before the court or tribunal is vexatious, or does not disclose a cause of action, procedures exist that would allow the case to be terminated. Procedures are now in place in employment tribunals to sift out claims that cannot be substantiated. That, again, is an important safeguard. A tribunal application will be accepted only if the aggrieved party has been through the statutory grievance procedure with the employer, as required by recent reform to employment legislation, maximising the opportunity to have a non-judicial outcome.
	Similarly, there are also procedures that allow a successful respondent in court to claim the costs of their defence. The bulk of these cases are dealt with in the employment tribunal, with straightforward procedures, no need for representation, and a sifting process to ensure that these are real cases and real claims and that vexatious claims are dismissed. Where a case might go to court, it is possible to claim the cost of the defence, which is important.
	I also outlined on Report the safeguards built in when the commission exercises its other regulatory powers; for example, to compel evidence in the course of an investigation. In looking at devising these powers, we thought carefully about the need to ensure that there is a fair process for those who are subject to enforcement action. We believe that we have achieved a reasonable balance. The commission will be a public body and will be subject to review in the courts if it seeks to act unreasonably or unlawfully by the nature of it being a public body.
	As the noble Baroness is aware, legal aid will be available to any individual facing proceedings in the county court, subject to the statutory means and merits tests. The noble Baroness, Lady O'Cathain, referred to the case of Steel and Morris v the United Kingdom. In that case—I refer to it because of the question the noble Baroness specifically asked me—the European Court of Human Rights ruled that the inability of the applicant to get legal aid had breached their right to a fair trial under Article 6. The court highlighted the exceptional nature of that case: at 313 days the longest in English legal history, 40,000 pages of evidence, 130 witnesses giving oral evidence, and a 762 page substantive judgment. In this "exceptionally demanding" case—as the court described it—a fair trial was not possible if one side lacked the resources to be represented or to cover the costs of mounting a defence.
	That is why, in the Access to Justice Act 1999, the Government made exceptional funding available in cases which would normally be excluded from public funding. A grant would be made by Ministers if it was recommended by the Legal Services Commission and if the case has a significant wider public interest or an overwhelming importance to the client, or if it would be practically impossible for the client to defend the proceedings. The Steel and Morris decision was made in an exceptionally demanding case with an extreme disparity of resources, and we believe that the exceptional funding scheme remedies the deficiency in the legal aid regime that brought that about.
	I have thought carefully about the proposal for a new fund that would provide legal assistance for an individual, a charity, or religious or belief organisation, subject to the commission's powers. But as I said on Report and as I have said to the noble Baroness, there are difficulties about the proposal, not least—and I make no bones about it—because of the pressures on legal aid funding, the need to control that and the other good causes that would, in a sense, come forward. It would have to be an establishment of a fund at the expense of other priorities.
	I hope that all the safeguards I have now outlined will give the noble Baroness some comfort. I refer to the way the commission will be set up, the way that it is meant to deal with these issues, the approach it must take to its stakeholders, the way in which we would expect it to deal with its regulatory powers and the way in which the courts and tribunals now operate. I see very little danger, but if there were a danger I have already outlined what could happen. I say categorically that it is not our intention that the commission will be able to use any of its powers to pick on individuals, charities, religious or belief organisations or small firms. On that basis I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness O'Cathain: My Lords, I thank the Minister for her words. I hope that the commission and indeed the courts will pay heed to what she has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn
	Clause 33 [Equality and human rights enactments]:

Lord Alli: moved Amendment No. 10:
	Page 20, line 32, at end insert—
	"(ea) regulations under Part 2A of this Act,"
	On Question, amendment agreed to.
	Clause 41 [Transitional: the Commission]:

Baroness Ashton of Upholland: moved Amendment No. 11:
	Page 25, line 7, leave out subsection (8).

Baroness Ashton of Upholland: My Lords, noble Lords will recall that during the debates in Committee and on Report we discussed the issue of the term of office of the Disability Rights Commission transition commissioner. These two amendments seek to address the concerns expressed by noble Lords and to clarify the Disability Rights Commission transition commissioner's role.
	On Report, the noble Lord, Lord Ashley of Stoke, the noble Baroness, Lady Darcy de Knayth, and my noble friend Lady Wilkins raised concerns about the term of appointment of the DRC transition commissioner not being of sufficient length to allow the wealth of knowledge and expertise that the Disability Rights Commissioner has built up to be transferred effectively to the new commission. On Report, I said that I understood the case for having the term of appointment of all three transition commissioners on a common basis and that it was a matter on which, in the classic way, I volunteered to reflect further. I have indeed reflected further, and these amendments are the result.
	Amendment No. 11 removes the disparity between the term of appointment of the Disability Rights Commission transition commissioner and the transition commissioners nominated by the Commission for Racial Equality and the Equal Opportunities Commission. Amendment No. 44 clarifies the role of the transition commissioners, capturing the essence of the arguments put forward by noble Lords on Report, which is that the role of the transition commissioners is to ensure a smooth transfer of functions and expertise from the existing commissions to the new commission. We are ensuring that focus by precluding the possibility of the DRC transition commissioner being appointed as either a member or chairman of the disability committee. As the Disability Rights Commission has expressed it, the DRC transition commissioner is looking back, whereas the committee is looking forward exclusively. I beg to move.

Baroness Darcy de Knayth: My Lords, I warmly thank the Minister for both amendments, which were in response to amendments tabled in Committee and on Report by the noble Lords, Lord Carter, Lord Ashley and Lord Addington, the noble Baroness, Lady Wilkins, and me. That is a rather long preamble because none of them can be here, which they much regret. They are either at an important committee meeting or ill, so I am here to thank the Minister on their behalf. Their eloquence has paid off. I shall echo the noble Baroness, Lady O'Cathain, who has disappeared, and say that the Minister deserves a degree in diplomacy. This change is due to their eloquence and her unfailing ability to listen. She has reflected once again and has come up with the goods.
	It is valuable to have the distinction. I am grateful for the transition commissioner going on for longer, because a certain number of cases might have been jeopardised otherwise. We are all extremely grateful.

On Question, amendment agreed to.
	Clause 45 [Harassment]:

Baroness Miller of Hendon: moved Amendment No. 12:
	Page 27, line 7, leave out "or effect"

Baroness Miller of Hendon: My Lords, it is with considerable regret that I find myself in the position of being virtually forced to bring the amendment back at this final stage of the Bill, which in general terms is accepted by all parties as being very necessary in this day and age. The amendment is the same as that I proposed in Committee. It deletes two words from Clause 45, which describes the offence of harassment as being something that is done by one person, A, with "the purpose or effect" of violating someone's dignity or,
	"creating an intimidating, hostile . . . or offensive environment for B",
	where B is another person. In the strongest possible terms, I object to the words "or effect", because they mean that we are not merely banning acts that are done with the express purpose of violating someone's dignity or intimidating or degrading B, but the Government want to ban acts that a person can claim have that effect.
	The Oxford English Dictionary describes "effect", among many other descriptions, as "an impression", which is a purely subjective test that it is impossible to disprove. If B says something that has that effect, who will gainsay him? We have only to look at the events of the past few weeks to see what ludicrous effects politically correct opinions can have. I am not talking about the farcical decision to commemorate the Battle of Trafalgar as having been fought between the red and blue fleets, rather than between us and the French. I am talking about the nonsense of one local authority renaming Christmas lights as winter lights, about schools banning nativity plays and Christmas cribs, and about the kite flying over Bonfire Night claiming that it is offensive to Catholics. Actually, Bonfire Night commemorates the prevention of an act of religious terrorism.
	I hope that the Minister will forgive me for saying this, but I am talking about the absolute farce of the Home Office—the department of one of the two Ministers conducting this Bill throughout your Lordships' House—threatening to withdraw support and funding for an annual carol service at St Martin-in-the-Fields, one of the most famous churches in London, on the grounds that it is too Christian. I wonder if the Minister's department has noticed that every year, a Christmas tree is erected in Trafalgar Square just in front of St Martin-in-the-Fields. Perhaps we will be expected to reject the Norwegians' generous annual gift, on the grounds that some mischief maker might claim that, as the Bill says, it has the effect of violating his dignity or humiliating him. Worse still, some mindless bureaucrat might decide that it might conceivably do so, however remote that idea appears to be.
	The irony is that responsible spokesmen for all the major non-Christian religions have said time and again that the celebration of Christian festivals and the publication of biblical texts outside churches does not offend them in any way. Equally, I have never heard of any one person of the dominant faith complaining about the celebrations—sometimes colourful celebrations—of the festivals of other faiths.
	I refer to the answer that the Minister gave me when I raised this matter on Report. She said that,
	"it would always be open to those who had the 'effect' of discriminating"—
	she probably meant harassing—
	"to say, 'I didn't intend it'".—[Official Report, 19/10/05; col. 821.]
	With the greatest respect to the Minister, who is one of Her Majesty's learned counsels, I believe that that is totally incorrect.
	The clause says nothing about the necessity of proving an intention to have that adverse effect. On the contrary, the intent aspect is entirely covered by the earlier words in the same sentence, which refers to acts for the purpose of having that result. In a letter to the noble Lord, Lord Lester, dated 2 November, which has been placed in the Library, the Minister said:
	"Simply removing the words 'or effect' would mean only those actions which are carried out with the express purpose of violating another's dignity or creating an intimidating environment could constitute harassment".
	Exactly—that is precisely the result that I am trying to achieve with this amendment.
	The Minister also said that the same wording is found in other legislation, including that directly related to Sikhs and Jews, and that this amendment would create an inconsistency. Possibly because I found myself simultaneously coping with another major Bill and not having the benefit of flocks of paid researchers such as are enjoyed by Ministers and Members of the other place, I did not have the time to look up what she was talking about. If I had, I would have used this Bill as an opportunity to try to remove such a patronising and condescending provision at the same time. If such provisions exist elsewhere, as the Minister says, they are equally wrong. If we have not yet seen a crank or malicious claim, that does not mean that we will not in the future. It is certainly no excuse to leave a similar, objectionable provision in the Bill.
	Earlier this evening, I said that the Minister could not accept the amendment, or did not want to. Actually, I think that it would create a considerable inconsistency, as she says in her letter to the noble Lord, Lord Lester of Herne Hill. It is not that she does not think that the words should go, but rather that it is difficult to get rid of them because they appear elsewhere.
	The words that I object to, and wish to remove, are those that create an offence merely because a person claims that some act or other, however innocuous, has adversely affected him mentally. How is anyone going to be able to climb into the mind and see if it really did? Are we really going to have to rely on the courts to decide whether it was reasonable for him to take offence? I cannot understand why the Government are so obdurate in refusing to remove these two words. They do not prejudice the working of the clause.
	I commented on Report that I was not supporting the amendment of the noble Lord, Lord Lester of Herne Hill—to delete Clause 47, as it was then—because I thought the Government would except the words "or effect". If you take those words out, the rest of the clause is a good one in that it stops people being harassed, intimidated or made nervous. With those words, however, it is totally unacceptable. So it is more than what I said before—that I had reservations because it was, in effect, throwing the baby out with the bathwater. It was purely that I thought that there was enough left in that clause to make a good clause. I did not want to force the Government to get rid of something that might be helpful.
	The political correctness and cotton wool nannying that these two words generate can lead only to endless litigation. The Minister will tell me that they will not, because she can give me examples of other Bills that include them. They should not be in this Bill; they should not be in the other Bills. I am going to test the opinion of the House in a moment, and very much hope that we are going to be able to remove these two offensive words. They change what ought to have been a very good clause.
	If the Minister is unable to accept that—I suspect that she is not, because she has been listening to me a lot and simply says no because it is inconsistent with other Acts and so on and so forth—I will advise all my noble friends that they will have to vote to get rid of Clause 45. I would be sad if that is what we would have to come to, because there is value in that clause.
	If the Minister were able to agree with my amendment, there would be no need for the other amendment. However, the noble Lord, Lord Lester of Herne Hill, has kindly spoken to me at length and has suggested to me that I should not divide the House because I cannot win, and that, by advising my colleagues to vote for Amendment No. 14, that amendment could be won. I said to the noble Lord that I would think about it, and I did. Two points come to mind, however. First, if there is a wish to make this clause better, then I am amazed at what the noble Lord has said. He says that we could support him in getting rid of the whole thing, but he would not find it possible to support getting rid of the two words that make it offensive.
	That is one reason why I will test the opinion of the House. If the reality of the situation is that we do not win, I will support the noble Lord, Lord Lester, and would advise my noble friends to do likewise. The second reason why I am not prepared to do as the noble Lord suggested is because, although I want to get rid of those words, I believe that the rest of the clause is acceptable. I feel that when you believe in something, you have to do what you believe. I beg to move.

Lord Lester of Herne Hill: My Lords, first, I make it clear that in speaking to this amendment I am speaking to the entire group of amendments. I am sure noble Lords will be relieved to hear that I shall make just one speech. Secondly, what I am about to say shows no lack of support for Part 2 in relation to religious discrimination. I have no difficulty about those provisions, which are very important and which we support. Thirdly, my object is to persuade the Minister and, for that matter, the noble Baroness, Lady Miller of Hendon, that the right thing to do is to remove this clause from the Bill and get it sent to the Discrimination Law Review so that it can be considered in the light of everything else and then it can come back and we can have a provision of which we can be proud.
	Having said that, we have previously explained our strong objections to the way in which a broad and ill-defined tort of religious harassment has been included in the Home Office part of the Bill, creating a real risk of legal proceedings by the intolerant or the thin-skinned will be brought in the sensitive areas of housing, education or public services. I am not going to repeat them. We proposed that the complex issues surrounding this controversial tort should be removed and reconsidered by the Discrimination Law Review, and the Minister appeared to be sympathetic to that suggestion.
	However, as the noble Baroness, Lady Miller, mentioned, on 2 November the noble Baroness, Lady Scotland, sent me the Home Office's reasons for insisting on retaining religious harassment in Part 2, rather than referring it to the Discrimination Law Review. I am sorry to have to say that it is clear from her letter—this is a bit hard, but it is true—that the Home Office still does not understand the most basic principles of discrimination law. I am delighted to see the noble and learned Lord, Lord Slynn of Hadley, in his place because I am going to refer to one of his judgments. The letter correctly states that Jews are covered by the Bill as an ethnic group but states that "part of designating them" as an ethnic group is "that they have a shared religion". It is not clear to whom the Home Office refers as "designating" Jews as an ethnic group. It is not for it to do so. In any case, it is not true. The letter also asserts that the Race Relations Act protects Jews,
	"from religious as well as ethnic discrimination and harassment".
	I have heard similar views expressed by the Muslim Council of Britain. They are without foundation, and it is a matter of concern that they are given credence by the department responsible for the operation of the Race Relations Act.
	It has been clearly established for a quarter of a century, since the decision of Mr Justice Slynn, as president of the Employment Appeal Tribunal, in 1980 in the case of Seide v Gillette Industries Ltd, which the noble and learned Lord may remember, that Jews are included within the Race Relations Act only as victims of racial, and not religious, discrimination. That decision was followed in the case of Tower Hamlets London Borough Council v Rabin in 1989 and was relied on in the House of Lords case Mandla in 1983. It was also shown in the New Zealand Court of Appeal case called King-Ansell. Jews are protected under the Race Relations Act not because they have a shared religion but because of their shared ethnicity, whether real or as perceived by anti-Semitic discriminators. Exactly the same protection applies to Muslims—I am sorry there is no Muslim Peer here today—who are protected if they have an ethnic identity as well as a religious one; for example, because of their colour or national origins. The typical anti-Semite who persecutes Jews does not usually do so because of their religion but because of what he regards as their tainted ancestry and their blood. The Nazis murdered anyone with Jewish ancestry irrespective of their religious beliefs. It is profoundly dispiriting to encounter such misunderstanding of anti-Semitism and of discrimination law and it is offensive to the memory of millions of Jews slaughtered in pogroms and in Nazi extermination camps. Jews were persecuted and exterminated on the Continent because of their actual or presumed Jewish identity or origin. They were not spared because they were atheists or agnostics.
	It has even been suggested by the Minister that Jews may be removed from the protection of the Race Relations Act altogether and given protection only on religious grounds. I cannot believe that she would really do that because that would be a regressive step that would not only breach the UK's obligations under the European convention, the international covenant and the CERD, but it would also be deeply offensive to the victims of the Shoah and to the entire Jewish community. When the first Race Relations Act was enacted in 1965, with Sir Frank Soskice at the Home Office, it was done in part to combat an increase in racial anti-Semitism. It would be outrageous to withdraw that protection because Muslims as such are not a racial group. I hope that we shall not hear that suggestion again.
	The true position may be summed up in this way. There is religious anti-Semitism and there is racial anti-Semitism. Before the 19th century, anti-Semitism was primarily religious in nature, based on Christian or Islamic interpretations of Judaism. That form of prejudice and discrimination is directed at the religion itself and so usually does not affect those of Jewish ancestry who have converted to another religion. That form of anti-Semitism is covered by the religious discrimination provisions in this Bill, just as religious Islamophobia is covered.
	Racial anti-Semitism is a kind of xenophobia rooted in ideas of race. Racial anti-Semitism became the dominant form of anti-Semitism from the late 19th century until today. It replaced the belief that the religion of Judaism was to be hated with the idea that Jews themselves were a racially distinct group regardless of their religious practice and that they were inferior or worthy of animosity. It is racial anti-Semitism—will the Home Office please listen and note?—that is made unlawful under the Race Relations Act, just as racial Islamophobia is covered by the Race Relations Act.
	To meet the criticism of extreme vagueness of religious harassment, the Home Office relies on the fact that similar language has been used in regulations to give effect to EU directives. That is true and it is regrettable that the Government have not exercised the option under the directives to define harassment more precisely to accord with the British legal tradition. In any event, the provisions of Part 2 of the Bill are not required by EU law; we have a free hand. The Home Office letter adds:
	"If it is desirable to define harassment more closely we consider the place to do so is the Discrimination Law Review where the issue can be looked at across various discrimination strands, not in relation to one equality strand alone".
	We agree and that is why we seek to remove the tort from the Bill so that it can be considered by the review instead of being a flawed part of the law of the land.
	To meet the criticism that the Home Office has inconsistently excluded religious, unlike racial, harassment from the provision of goods, facilities and services to the public while keeping it for housing, education and public services, the Home Office has come up with an entirely new and misguided argument. It says that,
	"significant power is exerted in a relationship, as it is in public functions, or employment or education or in the relationship between landlord and tenant".
	That is a novel argument that I have never heard before in an attempt to justify not following the Race Relations Act in relation to racial harassment, which applies to goods, services and facilities. The first answer to that argument is that the Race Relations Act draws no such distinction based on significant power—whatever that means—and the Home Office cannot explain why a different approach should apply to religious harassment.
	Surely significant power may be exerted in relationships covered by Clause 46, such as between a bank and its customers, or an airline and its passengers, or a theatre and its audience, or a hotel manager and his guests. It makes no sense to exclude the tort of religious harassment from those and all other Clause 46 functions but to include the tort of religious harassment in the relationship between a landlord and his tenants, or a teacher and her pupils, or in sensitive public services such as healthcare. If legitimate concern about the harmful effects of this vague tort persuaded the Home Office to exclude it from goods, facilities and services until the review is concluded and a new Bill is introduced, surely the same should apply across the board.
	The Government also suggest that there is "a less obvious imbalance" in relation to the provision of goods, facilities and services to the public but "significant power" may be exerted in all these relationships. If it is right to,
	"consider more deeply the position in relation to relations between individuals and service providers",
	as the Government say, then surely it is right to consider more deeply those matters in all contexts.
	In Amendment No. 13, the Home Office now proposes to include an exception for the innocent,
	"display of any material or article".
	Clause 45 covers anything done that has the purpose or effect of violating a person's dignity or creating an offensive environment. The Home Office letter obstinately refuses to delete the effect leaving only "purpose" as proposed by the noble Baroness, Lady Miller. The Home Office believes that,
	"to require proof of an intention to harass in the circumstances in which Clause 47 applies would be to go too far".
	However, the newly fangled Home Office amendment states that,
	"Action taken in connection with the display of any material or article is harassment for the purposes of subsection (1) only if taken for the purpose of producing a result specified in subsection (1)(a) or (b)".
	So the Home Office now recognises the need to prove intent rather than the effects of action taken in connection with the display of any material or object, but not for example if a landlord plays religious music at Christmas in the entrance hall of his flats in an attempt to persuade his tenants to join the church and save their souls.
	Even as amended, the religious harassment provisions would still catch proselytising by way of religious displays and materials such as posters, Bibles, crucifixes and so on because they involve deliberate attempts to persuade people of a different faith or no faith to join the church and they may be interpreted as harming human dignity—whatever that means—or creating an offensive environment. The display of a "Jews for Jesus" poster to persuade me to see the light would violate the dignity of observant Jews and create an offensive environment with the necessary mental element to constitute the tort. That is why the amendment tabled by the noble Baroness, Lady Miller, is not good enough. It would be a deliberate act causing offence to many Jews. Yet why should it be forbidden by law? It was because of concern for free speech that the Home Office did not apply religious harassment to booksellers. But the same considerations apply to what remains of religious harassment in the Bill.
	The Government are trying at the eleventh hour to mitigate the harmful effects of the tort which suffers from the twin vices of vagueness and over-breadth. But their amendments will not remove the flaws from these flawed provisions.
	I will give a few examples before I conclude. Suppose the Christian evangelical owner of a block of flats illuminates his property with Christmas lights around a model depicting Jesus in the crib in the manger, and he does so intentionally to spread the good news of the birth of Christ to his tenants so that they may abandon their Jewish or Muslim faith—or no faith at all. Or suppose that a secular Muslim property owner wishes to display in the entrance hall a copy of the artistic work that unfortunately had to be removed under pressure from Tate Modern showing the Koran in a broken condition and in need of repair. Suppose she does so with the intention of persuading fundamentalist Muslims to modernise their religious practices and utterances, like the editor of the women's magazine in Afghanistan who was recently given two years' imprisonment for challenging a belief that Muslims who convert to other religions should be stoned to death.
	Such action in those two examples would constitute deliberate religious harassment and could give rise to legal proceedings for damages or a declaration or an injunction. That would seriously threaten free speech—the very reason which prompted the Home Office to exclude religious harassment from the provision of goods, services and facilities. The exemption for religious objects would be no defence.
	Given the undefined nature of what constitutes "religion or belief", of "violating human dignity", or of "an offensive environment" in Clause 47(1), and the absence of any filter between claimant and defendant in proceedings brought under Clause 67, the inclusion of this tort would, we believe, encourage divisions within the community and litigation that was against the public interest.
	I am sorry to have taken so long. I shall not speak again on this. But for all those reasons we on these Benches hope that the Government will accept our amendments and refer these issues to the Discrimination Law Review for full consideration.

Baroness O'Cathain: My Lords, I rise to speak to Amendments Nos. 12, 13, 14 and subsequent ones. My noble friend's Amendment No. 12 would of course provide a safeguard, but it does not go far enough. Narrowing down Clause 45 to actions that have the purpose of causing harassment does not eliminate the risk of catching all kinds of perfectly sensible behaviour.
	What if a religious charity knew that some people thought that saying grace at meals was harassment? If it continued to say grace anyway a court could infer a harassment purpose on the basis of its prior knowledge of other people's sensitivities. No, these harassment provisions are just too risky whichever way you slice them. I acknowledge my noble friend's concern about this issue—she is a deeply committed person. We have had discussions on the matter. But in these circumstances I prefer the amendment of the noble Lord, Lord Lester, to delete harassment completely from the Bill. I have put my name to that amendment.
	Turning to government Amendment No. 13, I am reluctant to appear ungrateful when the Government have clearly moved some way towards us on this issue. I know that the noble Baroness, Lady Scotland, has applied her considerable brain to this matter and has sought to offer something which meets the problem. I appreciate that but I am sad to say that this amendment is simply not enough.
	Since Second Reading I have constantly raised concerns about how the religious harassment provisions could be used to attack our religious heritage and undermine liberty. Amendment No. 13 proves that my concerns were well founded. It now appears to be accepted that without this amendment a hospital could be sued for harassment over the placing of Bibles, a local council that holds a public meeting in a church could be sued over the presence of a cross on the wall, and, indeed, a Salvation Army hospice could be sued over a banner on a wall containing a biblical text.
	My concerns about harassment have grown as the weeks have gone by. We live in a crazy world where some individuals are litigious. We live in a country where officialdom increasingly appears to be in thrall to political correctness. That is already having a damaging effect on our heritage. Last week we had front-page newspaper headlines about officials at Lambeth council trying to ban Christmas lights; Inland Revenue officials banning support for a Christian charity that sends Christmas presents to needy children; and museum staff deleting references to Christ from exhibits. We need to be sure that the Bill does nothing to encourage this kind of lunacy. Although the government amendment addresses religious objects, I am worried that it does nothing for free speech, as the noble Lord, Lord Lester, said.
	On Report I tabled an amendment on behalf of the Church of England, which addressed not only religious objects but also manifestations of religion. It was intended to protect the saying of grace at meals and conversations about religion. The government amendment, to be fair, copies my amendment in some ways—and I am flattered—but it deletes references to manifestations of religion.
	I understand that officials felt that this area was too difficult to address, but we cannot just leave the matter to the tender mercy of hostile litigants because it is too difficult for officials to address. We cannot ignore the plight of the Christian hospice that could be sued for saying grace, or the prison chaplain who is told he cannot initiate conversations about God with inmates, or the Inland Revenue employee who is banned from wishing his clients a merry Christmas.
	I think that the whole issue of harassment is absolutely fraught and that we would be better off without it. That is why I cannot support the government amendment and instead support Amendment No. 14 and all the subsequent amendments in this grouping, to which I have added my name. I do so because I fear religious harassment could be as damaging to religious freedom and community cohesion as the religious hatred provisions that the Government want to introduce in another Bill.
	Like the noble Lord, Lord Lester, perhaps I may briefly give the House some theoretical examples of the kind of mischief that could result from Clause 45. Let us imagine that a Home Office official gives a talk on community relations. Perhaps he talks about the risks posed by certain religious cults. If one of those present is a member of such a cult, an action could be launched claiming that the official created a hostile environment. What about a GP's waiting room where there are posters on the wall—and I have seen these—from a Government agency advertising a telephone helpline for members of ethnic minorities who are being coerced into forced marriages? If a woman comes in who believes, as a matter of faith, in arranged marriages, could she lodge a claim that the poster created a hostile environment?
	What about the case of a pagan who outwardly says he is a pagan and is in gaol for a paedophile offence? The chaplain criticises the occult and warns prisoners to have nothing to do with it. The pagan could claim harassment; he could seek an injunction. Does this case sound ridiculous? These are the facts of a real case, brought in Australia under religious vilification legislation. It did not succeed under Australian law, but it illustrates the kind of case that could be brought.
	We are not legislating in a vacuum. We are legislating in a climate where there are already some who view the equality agenda as a pretext for attacks on faith. I quote from last Sunday's Observer:
	"A local authority is to pull the plug on its funding for festive lights because Christmas does not fit in with its 'core values of equality and diversity'. Waveney District Council, based in Lowestoft, Suffolk, said that because Christmas focuses on the Christian faith, it had decided its 'equality and diversity' commitments were not being met".
	This is ludicrous.
	Sadly, even the Home Office itself is making headlines on this issue. In one of yesterday's papers it was revealed that Home Office officials are threatening to withdraw funding from a memorial carol service for the victims of crime because it is too Christian. It suggested holding the service at a secular venue. This is precisely the kind of over-sensitivity that this harassment provision will foster. Removal of the provision would remove a considerable source of uncertainty and, indeed, anxiety from the Bill. I do hope for great support for Amendment No. 14 in the Division Lobby.

Lord Waddington: My Lords, two amendments in this group are directed towards mitigating the worst effects of Clause 45. I refer to Amendment No. 12, to which my noble friend spoke at the beginning of this debate, and government Amendment No. 13. So long as Clause 45 stands, it will remain all too easy for public authorities to ban religious activity on the pretext that such activity could be found to have the purpose of violating somebody's dignity or creating an offensive environment for him. So I support the amendment, which the noble Lord, Lord Lester, is going to move, to delete Clause 45 and I am afraid that I cannot support my noble friend on Amendment No. 12 .
	I want to make a general point. Of course, one should be sensitive to other people's feelings, but I think society has some reason to be worried about the gross and disproportionate way some people react to real and imagined slights and take offence at views expressed by others. It would be a great pity if by changes in the law we were to give encouragement to the over-sensitive to rush to the courts to correct real and imagined grievances. But the real worry, as many noble Lords have said in previous debates, is not that people will rush to the courts to bring actions for religious harassment; it is that public authorities will play safe and restrict the right of Christians to practise and demonstrate their faith for fear of finding themselves on the wrong side of the law.
	To that end, they may put a stop to any manifestation of the Christian faith in public buildings by, for instance, cutting funding to Christian welfare charities because they say grace before meals. One has to look only at the circumstances referred to by my noble friends—the reluctance of certain authorities to celebrate Christmas and all the nonsense of the Home Office apparently threatening to withdraw funding for an annual memorial service at St Martin-in-the-Fields for the victims of crime—to realise that the fears expressed by Christian bodies are not fanciful. They are real.
	We are being dangerously complacent if we imagine that if Clause 45 stands we will not find public authorities banning Bibles from hospitals, crosses from cemeteries and crematoria, and chaplains from prisons. Amendment No. 13 does something to protect the display of crosses and Bibles. No government amendment does anything to protect religious debate—in short, to protect free speech.
	I fear that under existing law the pendulum has swung dangerously far against free speech. I do not believe that when the Public Order Act was passed in 1986—I was in government at the time—anyone thought that that Act would be used to punish a minister of religion for preaching against the commission of homosexual acts. Yet that happened in Bournemouth a couple of years ago. The minister preaching against homosexual acts was assaulted by a group of young men—claiming no doubt that their dignity had been violated—but they were not even cautioned. It was the minister of religion who was punished.
	Personally, I think that that prosecution was outrageous, but that is not my point. My point is that there are already plenty of weapons in the hands of those who wish to suppress free speech and already too many opportunities for those who want to see the free expression of religious views curtailed. I do not want to add to their armament. Most people can see the sense of legislation to prevent discrimination—almost everyone does. Legislation to stop people being offended is a very different kettle of fish.

Baroness Turner of Camden: My Lords, I have put my name to this group of amendments mainly because, during the passage of this Bill, I have spoken from time to time about harassment. It is repugnant to most people that anyone should be authorised in any way to harass anyone else. But I come to this issue from a different angle from that voiced by noble Lords on the other side of the Chamber. I come at it from the standpoint of someone who is secular and a member of the Humanist Association. I do so because, while I support wholeheartedly the right of religious people to practise their religion and to proselytise, I do not believe that they have a right to enforce their beliefs on people who do not share them. Neither do they have a right to impose their way of life on people who do not share their beliefs.
	As the Bill stands, in certain aspects, it could have that effect. Certainly, the Humanist Association thinks that it could, and it is particularly concerned about the effect of Clause 50(3). It says that it understands that the subsection is intended to protect the religious character of faith schools from complaints by parents of other religions or of none. Nevertheless, the wording will exempt not only legitimate religious activities of faith schools but the type of conduct by teachers towards pupils that could involve mocking or condemning their conscientious beliefs because such pupils do not share the school's beliefs. The association believes that the rights of the school must be balanced against the rights of the child.
	I share that view, which is different from that expressed by the noble Lord, Lord Waddington, and the noble Baroness, Lady O'Cathain. I put my name to the amendments because I want to protect the right of those who do not have religion not to be harassed.

The Lord Bishop of Newcastle: My Lords, we on these Benches have similar concerns to those expressed by the noble Lord, Lord Lester, and the noble Baroness, Lady O'Cathain, especially about Clause 45 on harassment.
	The concept is uncertain in its scope. One of the anxieties is that it may enable people, both of faith and of none, to take advantage of the provisions to make inappropriate claims of harassment. The provision is so widely drawn. It refers to,
	"creating an intimidating, hostile, degrading, humiliating or offensive environment",
	and "violating" someone's "dignity". That is broad and uncertain and the parameters are far from clear.
	We have considerable sympathy with the analysis of the noble Lord, Lord Lester, and we are concerned that such a provision, wide and uncertain as it is, could be used to strike at religious organisations and their practices from outside the faith communities. They could also be used to encourage differences between them.
	While it is true that someone's perception that he is the subject of harassment is not enough to found a successful claim, there is always the test of reasonableness. None the less, the potential for claims to be made against religious organisations remains. The encouragement of litigation in that way cannot be in the public interest. While we strongly support the idea that no one should ever be harassed on grounds of religion or belief, which I tried to say clearly in Committee, we still find this part of the Bill unsatisfactory, and we are worried that it could do more harm than good.
	I find myself in something of a dilemma. If the harassment provisions remain in the Bill, we wish them to take a form that gives as little scope as possible for bringing claims of harassment in relation to expressions of religious belief. We believe that the government amendment helps and provides some assistance, and we welcome it to that extent. If Amendment No. 14 is passed tonight and if Clause 45 is then reinstated in another place, we would want the government amendment to be along the same lines, and extended if possible, in the final form of the Bill.

Earl Ferrers: My Lords, I am also concerned about the question of harassment. As the right reverend Prelate said, it is wrong that people should be harassed in any way. My noble friend Lady O'Cathain referred to this crazy world where individuals have become litigious. That is so, and I fear that we shall become more litigious, especially if we in Parliament try to account for every detail. Legislating for every eventuality and nicety means that every time a criterion is put down, we are inviting people to agree or disagree, and then to litigate, or we frighten people from doing what they have always done in case somebody might litigate against them.
	My noble friend Lord Waddington was quite right when he said that the outcome of this Bill would not be that people would be rushing to take others to court for what they have done, but that the local authorities would take action. Reference has been made to Christmas lights being banned and called winter lights and to Christmas cards that say "Season's Greetings" instead of "Happy Christmas" for fear of prosecution.
	People ought not to be frightened of doing something in case Big Brother gets at them. I can give noble Lords my thoughts on this matter only in a general sphere. Let us assume that your Lordships consider the general principle of the Bill, that Ministers give worthy assurances that things will be all right and that the Bill goes through. But once the Bill becomes law and officials look at what the law says, they will forget what Ministers have said and think, "Goodness, we've got to take this action because if we don't, somebody will say that we are not doing what we should have done according to the law".
	Perhaps I may give noble Lords one example which occurred to me only this past week. I received a letter from a local authority. The letterhead included the kind of thing that we are used to seeing nowadays; for example, the Metropolitan Police always has some whacky saying at the bottom of its letters such as "Serving London" or "Creating a safer London". It is completely unnecessary, but that is what it does. The letter in question had come from Norfolk County Council and I think the words in this case were "Serving the Community"; in other words, doing all the things that government and people want and being non-frightening, understanding and conciliatory. But the top right-hand corner of the letter said: "Farm Enforcement Team". That has all the flavour of the jackboot. There is not much community service there. It is dictatorial and it is frightening.
	That is what happens. If you go ahead putting lovely ideas into Bills, and trying to dot every "i" and cross every "t", you will make enforcement a matter of considerable concern. My fear in general is that by trying to cater for every eventuality, we are storing up trouble for the future.

Lord Stoddart of Swindon: My Lords, like the noble Baroness, Lady Turner of Camden, I am a secularist and I see great dangers in this clause. For example, somebody might call me a heretic or an infidel, and I might very well take grave exception to that. It is very dangerous to be called a heretic or an infidel because, as a heretic, you can burn and, as an infidel, you can be stoned to death. One could therefore very easily take exception to being called a heretic or an infidel. One does not have to be of religious faith to be offended. As other noble Lords have pointed out, we are reaching an absurd situation where Christians are being penalised because they want to celebrate a Christian festival and those festivals are being put aside because of some perception that other people of a different faith might be offended.
	That is completely absurd. I will give one more example, which is that is of a fire officer going to a fire station and insisting that the cross of St George should be removed in case that offended Muslims. We really are reaching an absurd situation, and it seems to me that this clause, in particular the phrase "or effect", will exacerbate the position rather than provide proper equality between people and religions.
	Another thing about it which worries me is that the people who are often alleged to be offended—it generally happens that it is people of the Muslim faith—are not offended. I am afraid that it is often white, so-called liberals who impose these restrictions, not the Muslims who might be affected. But the effect of that, when it comes through in the newspapers, is that it is the Muslims who are objecting—and not that is their white, Christian compatriots who are doing this. That, in turn, leads to racial difficulties between people, and, indeed, to racial hatred. It is exactly what the Bill is supposed to eradicate.
	I really want to support both amendments, but the better one is probably that moved by the noble Lord, Lord Lester. The matter really needs to be looked at very seriously and the noble Lord, along with other Members of your Lordships' House, has obviously given it considerable attention. We should be grateful to him for that. I hope that if the Minister takes no notice of what I say—and she never does—that she will, at least, take notice of the distinguished contributions made this afternoon, in particular by the noble Lord, Lord Lester, but by other noble Lords and Baronesses as well.

Lord Maclennan of Rogart: My Lords, this is my first intervention in the debate. I have been interested to consider the circumstances in which the Government's proposed new offence might be helpful. Starting from scratch, I am bound to say that I do not think it would be helpful in the kind of situation where it seems that this allegation might be most commonly made. That is where there are two communities living side by side, holding different religious views, and where the expression of their normal belief might be regarded as provocative to the other community.
	I have thought back to the case of my late father, who was indeed a religious man. He ended up by being Lord High Commissioner to the General Assembly of the Church of Scotland, which was I suppose some recognition of that. He lived in a terraced house in Glasgow, which happened to be next door to a representative of Toc H—an organisation which I have not heard of recently—who was a descendant of Tubby Clayton's exercises. I remember distinctly when that organisation next door was wont to sing hymns loudly on several nights of the week. Whatever one may have thought of those hymns they became, in the mind of my father, something of a nuisance. It was a residential street, and when someone was just about to entertain some guests they would hear:
	"Yield not to temptation for yielding is sin".
	That might have been regarded as mildly irritating or even possibly provocative when it was repeated. So my father, having consulted a number of other neighbours who felt exactly the same way as he did—that this was a tiresome intrusion and almost too offensive—decided to retaliate. He played on his large gramophone a record of Mae West singing, as the Toc H followers arrived, "I wanna be evil". There was a suit for an accommodation. If either my father or the representative of Toc H had been dragged up on a charge of harassment, it would have been a preposterous state of affairs, and I do not believe that what the Government have in mind will alleviate situations of that kind.

Lord Mackay of Clashfern: My Lords, I thoroughly agree with what the noble Lord, Lord Lester, said. It is interesting that Clause 52 of the Bill says:
	"It is unlawful for a public authority exercising a function to do any act which constitutes discrimination or harassment".
	Then there are one or two exceptions, one of which, in subsection (4)(d), is,
	"the making of an instrument by a Minister of the Crown under an enactment".
	It seems very odd, if the Government are content with the definitions of discrimination or harassment as being in respect of conduct which is undesirable, that it should be perfectly all right for a Minister of the Crown acting under an enactment to do just that. That seems a contradictory stance.
	Needless to say, that is not my main difficulty—my main difficulty is the extreme vagueness of the provision. The Bill talks about "violating" a person's "dignity". What does that mean? I find it very difficult to see precise boundaries for that—but that is just one example. The whole clause is of that character, and as far as I am concerned the only thing to do is to omit the clause and leave it to be reviewed by the commission, which is engaged in a comparable activity.

Baroness Carnegy of Lour: My Lords, for all the reasons that have been given, I would like the clause to be removed from the Bill, but I should like to raise a procedural matter. I understand from the Clerks that there is no reason at all why the House should not alter the clause with Amendment No. 12 and then leave it out; or accept the Government's amendment, which certainly ameliorates the clause, and then leave the clause out if the House so wishes. This is very important, and I hope that the Minister can confirm that that is correct on the procedural point. Should the House fail to remove the clause, it would be very good to ameliorate it. I hope that there is no misunderstanding about that, and that I am right in what I am saying, as I did ask and thought I understood the answer. Perhaps we could have it confirmed by the Minister.

Lord Lyell of Markyate: My Lords, I am a latecomer to this Bill, because it had its Second Reading before I was introduced. However, when you come to analyse it, you find that it makes a deep-seated attack on freedom of speech and on freedom of religion. We fought over the centuries for freedom of religion. We did not have it in the 17th century; it was not until the 1820s that we got Catholic emancipation and it was not until well into the 19th century that we got religious freedom. Now we are making a move through this Bill—not deliberately, but this will be the effect—of actually restricting religious freedom very tightly and in very remarkable ways.
	Under this Bill, John Wesley would have been prevented from preaching in most open-air areas. Biggleswade marketplace or the Marlowes in Hemel Hempstead are places where people go and speak and express their opinions, and are owned by the public authorities. There is a serious danger that people might be restricted in what they are seeking to do. People set out their stalls for different religions—principally Christian religions, but they might well be Muslim religions. As many noble Lords have said, not only the possibility of prosecution is at issue; it is the much wider risk of what public officials will believe that it is their duty to do to restrict free speech and free activity.
	I praise my noble friend Lady Miller of Hendon because she has made the most constructive effort to improve this Bill by removing the words "or effect". There is no doubt that removing those words would represent a significant advance, because at least that would bring the Bill closer to requiring deliberate intent. But having listened to the speech of the noble Lord, Lord Lester, and others, including my noble and learned friend Lord Mackay, one has to wonder whether removing those words would go far enough, because purpose is not quite of the same nature as intent. After all, it is an essential of freedom of religion that you preach your religion with the purpose of saving the soul of another person. You must be entitled to do that in a free society, whether you are a Muslim, a Christian, a Sikh or a Jew, or of any other religion—or, indeed, a humanist or secularist—because you profoundly believe that to be the truth and that you will improve the world and the lot of your fellow men and women if you do that.
	I shall say just one word about the sheer importance of freedom of speech. One cannot believe that the Government have lost sight of it. On "Thought for the Day" there is a regular Muslim speaker, and there is Indarjit Singh of the Sikh Messenger—and there you find enormous wisdom expressed. We have reached a very dangerous situation, in which we have what my noble and learned friend Lord Mackay rightly referred to as something like "distorted religions" or mistaken ideas of religions—probably referring to the Muslim religion. Let us suppose that there is a publicly owned block of flats in north London and that some of the Muslims who speak there wish to hold a meeting in which they wish to say, "We must uphold our faith but we must be careful of distortion". Will they be allowed to hold that, when they will be criticising fellow Muslims of a different type of that faith, just as we Christians sometimes criticise each other for different approaches to our own faith? They may be doing it in ways that would transgress this Bill.
	I believe that this part of the Bill, and this clause, present very grave dangers. If the House is moved to support the amendment tabled by my noble friend Lady Miller, I shall vote for it, and if we move on to delete the clause altogether, I shall vote for that.

Baroness Scotland of Asthal: My Lords, I have listened carefully to all the comments made by noble Lords on all sides of the House. I can tell the noble Lord, Lord Stoddart, that many things have been said of me but very rarely have I heard it said that I do not listen and respond. If that is his view, I must tell him that I very much regret it.

Lord Stoddart of Swindon: My Lords, I did not make that as a blanket accusation—I merely said that she never listens to me.

Baroness Scotland of Asthal: My Lords, the noble Lord is quite wrong. I always listen to him because I have to answer the points that he makes. However, it is true that I rarely have the joy of agreeing with him—but there was one occasion that stands for ever in my mind, when the two of us were at one, and I shall never forget it.
	We are faced with a very interesting position. I first thank the noble Baroness, Lady Miller, because she makes it plain that she supports the purpose behind Clause 45 but has trouble with two words—"or effect". The noble Lord, Lord Lester, says this is unripe time—that the debate we need to have should more accurately and properly be carried out in the much-anticipated discrimination law review. The noble Baroness, Lady O'Cathain, says that this part of the Bill should not be there at all. So there are three different stances, and other noble Lords and the right reverend Prelate have made variations on those themes.
	For the purposes of clarity, I make it plain that what we are dealing with in this part of the Bill is how harassment will impinge on the way public services are provided. That is the context in which we speak. I shall start, although I appreciate it may take a little time, by dealing with the proper concerns raised by the noble Baroness, Lady Miller. I accept her passion about the improprieties of "or effect", which she maintains should be removed, not just from the provisions that relate to Clause 45, but also from all other parts of legislation where they appear.

Baroness Miller of Hendon: My Lords, I was making the point that if the only way we can delete this is because it is written in stone, we should get it out of stone so we can do what is right with this Bill.

Baroness Scotland of Asthal: My Lords, I understand that. Let us look at why the provision is there. It does have, if I may respectfully say so, a purpose. The amendment would remove it. As I have made plain before, those words are used in other key pieces of discrimination legislation. It is there in the Race Relations Act 1976 and the Employment Equality (Religion or Belief) Regulations 2003 without causing problems in those areas. It is a principle of discrimination law that you need to show that the actions of a person were intended to discriminate or harass. That is clear.
	For example, if the police were to adopt a policy that led to discrimination or harassment of Asians, it would not matter that they did not intend that to be the result. What is important is that their actions have in fact led to discrimination or harassment. The Government think the situation should be the same in the case of discrimination on the grounds of religion or belief. It should not be acceptable, for example, if the Prison Service were to adopt a policy that created an offensive environment for Muslims, that it could simply claim that that was not its intention.
	It is also important to bear in mind that one has to look at not only Clause 45(1), but also Clause 45(3). That makes it clear that:
	"Action by A shall be regarded as having the effect described in subsection (1)(a) or (b) only"—
	I emphasise "only"—
	"if it should reasonably be regarded as having that effect having regard to—
	(a) B's perception, and
	(b) all the other circumstances".
	So when we consider the concern that has been expressed about a capricious or irrational situation, I respectfully suggest that Clause 45(3) deals with that concern.
	We have brought forward our own amendment to the harassment clause, which we will debate further in a moment. We believe this goes a long way towards addressing the concerns the noble Baroness had—as did others, such as the noble Baroness, Lady O'Cathain—about accidental harassment or something that was not intended. The amendment centres on religious material or articles, but does not include religious practices. This is because religious practice is a very wide concept, and to say that a religious practice could never constitute harassment unless that was the intended effect is too much.
	In most cases, if a person receiving a public service felt harassed by religious activity, the solution would lie in simple practical measures, like making it possible to opt out of that practice in some way by doing something different so they did not feel so negatively about it. That is what the normal remedy would be, and what we believe would actually happen in most circumstances when dealing with people providing a public service. However, we recognised that it may not be so easy to adapt a physical environment, particularly where there are many different uses, perhaps including worship. It should be possible to adapt religious behaviour, though—even religious practice—in the context of the delivery of a public function. There has been a lot of debate in the House this afternoon that does not go to the public function but to the general expression of what people feel, but we have to concentrate on the fact that we are dealing with the exercise of public function.

Lord Lester of Herne Hill: My Lords, I am sorry to interrupt the Minister, and I am grateful to her for allowing me to do so. She keeps referring to public function, but, as she knows, this refers not only to public function but to housing and private education.

Baroness Scotland of Asthal: My Lords, it refers to housing. Noble Lords will know that the whole issue of what public functions are and what other issues are involved was dealt with when we talked about them earlier. It seemed to me that part of the discussion was not in terms of exercising a public function or providing accommodation, or those other matters. It was put in a very general way. It is important that we concentrate on what we are talking about in this part of the Bill.
	While I am on harassment and the nature of this part, there is a difficulty regarding what has been said about what defines and does not define a religion. I hope I will be able to say a little more about that in a short while.
	Who could say that it is right to harass on the grounds of someone's religion or belief in areas such as the provision of services by prison officers to those imprisoned, or immigration officers, or other dischargers of public functions? To say we will not act against such behaviour now in a Bill that—with considerable Cross-Bench support—tackles discrimination on grounds of religion or belief would send the wrong message about what is and is not acceptable, particularly to those communities that are most likely to suffer from this form of discrimination.
	The noble Lord, Lord Lester, suggested on Report that the Protection from Harassment Act 1997 provides sufficient cover in respect of harassment so that a separate provision in discrimination law is not necessary. I make it plain that we do not agree. The 1997 Act essentially covers behaviour that causes alarm and distress, that is unacceptable between any two individuals in our society, and that may be thought to be the precursor of violence. The use of the Act may have broadened from stalkers, its initial target, but does not cover the same range of behaviour as discrimination law. I understand what the noble Lord, Lord Waddington, has to say about the fact that it was never intended so to do, but it has developed, although it has not quite developed this far.
	In Part 2 we are concerned to protect individuals due to the specific relationship between them and a harasser because the harasser is providing a public service or other service that they need, or is involved in providing them with education or vocational training, or is their landlord, or is providing a roof over their head. We think it right to consider more deeply the position between individuals and service providers in the area of goods, services and facilities where there is a less obvious imbalance, and where the recipient or the customer frequently has more choice in how they are obtained. It is for that reason that we have put those matters into the discrimination review.
	We recognise that concerns remain around this issue—this debate itself demonstrates that—and that there are particular concerns to ensure that faith groups providing public functions do not by accident find themselves subject to a claim. We have said that we are willing to discuss the details of exemptions in all the areas affected. We have laid a further amendment to that end today, which I have already discussed. We will continue to consider these issues as these proposals are further discussed and implemented. But to remove the prohibition on harassment altogether from the Bill now would in our view fail those who may currently be suffering injustice in these areas.
	If it passes into law, we will have no power other than by use of primary legislation to change the definition of harassment in this Bill but it is right that it should be reviewed across the piece in the discrimination law review rather than introducing a separate definition for this one strand at this point. In addition, we have a power to create new exceptions in the area of public functions or to vary the exemptions elsewhere in Part 2, if we do find that these provisions cause us unexpected problems. If some of the fears that have been expressed in this House prove to be correct, we have a vehicle with which to address them.
	I turn to the amendment of the noble Lord, Lord Lester. I understand what he says about it. He asserts that we have misunderstood the definition of religion. I hope to clarify our definition. The noble Lord quite rightly referred to the House of Lords' decision in Mandla v Dowell Lee. In that judgment Lord Fraser said:
	"For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics . . . The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant: (3) either a common geographical origin, or descent from a small number of common ancestors (4) a common language, not necessarily peculiar to the group (5) a common literature peculiar to the group (6) a common religion different from that of neighbouring groups or from the general community surrounding it . . . A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it".
	That is why, using that definition, the Government believe it is right that an ethnic group is not defined by its religion but that it can in part be so defined. We believe that definition is helpful.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble Baroness for her lecture on Mandla. However, she needs to read the judgments of the noble and learned Lord, Lord Slynn, and the others to which I referred which deal with the point that was not dealt with in Mandla; that is, whether Jews are covered under the Race Relations Act on the basis of ethnicity or religion. The law clearly states that they are covered on the basis of ethnicity. It was that point I was trying to deal with. The Mandla case does not deal with that as such at all.

Baroness Scotland of Asthal: My Lords, as the noble Lord will know, we are dealing not simply with the Jewish community but also with the Sikh community. Mandla dealt directly with the Sikh community and its definition. That definition sought to distinguish the kind of issues which can identify people as a group. That by no means undermines the fact that those two groups have a different history but it clearly uses the definition I mentioned, which we consider is a helpful definition.
	I understand absolutely that the noble Lord would prefer this whole issue to be included in the discrimination review. However, we cannot accept that. If that were to be done, there would be no provision which referred to harassment in relation to this category, which is dealt with quite properly under Clause 45. It is simply not a satisfactory solution to say that these provisions can work. As regards the whole issue of discrimination law, the discrimination law review may well come up with a construct that is significantly different from that which we currently have in relation to a number of species of discrimination. The law that we have in each of these areas may change, and change significantly, once that review is complete. However, we have to deal with the situation until the conclusions of that review are issued. We seek to give appropriate protection to all those who may be significantly disadvantaged and discriminated against in relation to the way in which public services are given to them, and in relation to education and accommodation. All of those things are fundamental to the way in which people lead their lives. I respectfully suggest that it would be unjust not to deal with this wrong in a similar way to all the others.
	I say with all the gentleness which I can muster that if one looks at the provisions which were mooted on behalf of those who are discriminated against on the ground of sexual orientation, and one compares those provisions with all the other provisions in this area, one sees that they are almost identical, and not significantly different from that which we wish to implement in relation to religious belief. The difference is that we have not extended the provision to goods and services for the reasons that we have given. Therefore, I invite noble Lords to think very seriously indeed before expunging—because that is what it would amount to—from the Bill an opportunity to prevent people being seriously disadvantaged and to give them better protection. I understand what the noble Baroness, Lady Miller, said in relation to those two words. However, I reassure her that those will be exactly the issues in relation to all the species of discrimination that the discrimination law review will consider. We will not have to wait very long for that.

Baroness Carnegy of Lour: My Lords, before the noble Baroness sits down, is it possible for her to answer my point about procedure?

Baroness Scotland of Asthal: My Lords, as I understand it, the amendments will be dealt with in order. I believe that the vote would be taken first on the amendment of the noble Baroness, Lady Miller. If that amendment were carried, I believe that the vote on the amendment of the noble Lord, Lord Lester, could still take place, but votes could not be taken on the other amendments as they would all fall away. That is my understanding. I am sure that someone will correct me if I have misunderstood the procedure.

Baroness Carnegy of Lour: My Lords, could the vote on the amendment of the noble Lord, Lord Lester, take place if Amendment No. 12 were passed?

Baroness Scotland of Asthal: My Lords, that is right and I can see various people around the House nodding in agreement. However, the other amendments would fall away, because that part would no longer be there.

Baroness Miller of Hendon: My Lords, I listened very carefully to the Minister with real regret—not just mild regret, but real, passionate regret—because I feel that the Government are making a great mistake. Having said that, I would like to thank my noble friend Lady Carnegy and my noble and learned friend Lord Lyell for the support that they gave to my amendment. But the hour is late and, despite the fact that I said I would definitely divide the House, the truth is that the Government are against me, the Liberals will not vote on my amendment at all, and if I delay the House even longer, I understand from the noble Lord, Lord Lester, that he would have great difficulty in keeping his troops for the next amendment.
	I make those points because I feel very strongly about this issue. On the other hand, with those two words left there, I cannot possibly accept that Clause 45 should stay in the Bill. Under those circumstances I am pleased to agree with what the noble Lord has said to me and I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Baroness Scotland of Asthal: moved Amendment No. 13:
	Page 27, line 19, at end insert—
	"(5) Action taken in connection with the display of any material or article is harassment for the purposes of subsection (1) only if taken for the purpose of producing a result specified in subsection (1)(a) or (b)."
	On Question, amendment agreed to.

Lord Lester of Herne Hill: moved Amendment No. 14:
	Leave out Clause 45.

On Question, Whether the said amendment (No. 14) shall be agreed to?
	Their Lordships divided: Contents, 216; Not-Contents, 126

Resolved in the affirmative, and amendment agreed to accordingly.
	Clause 47 [Premises]:

Lord Lester of Herne Hill: moved Amendments Nos. 15 and 16:
	Page 28, line 39, leave out subsection (3).
	Page 28, line 40, leave out subsection (4).
	On Question, amendments agreed to.
	Clause 49 [Educational establishments]:

Lord Lester of Herne Hill: moved Amendment No. 17:
	Page 29, line 41, leave out subsection (2).
	On Question, amendment agreed to.
	Clause 50 [Section 49: exceptions]:

Lord Lester of Herne Hill: moved Amendments Nos. 18 and 19:
	Page 31, line 1, leave out "or (2)(a)"
	Page 31, line 7, leave out subsection (3).
	On Question, amendments agreed to.

Baroness Scotland of Asthal: had given notice of her intention to move Amendment No. 20:
	Page 31, line 8, leave out from "above," to end of line 9 and insert "nothing shall be unlawful if done by reason of or on the grounds of the purpose of the establishment (including the purpose of providing education relating to or within the framework of a religion or belief, in accordance with decisions taken by persons responsible for the establishment as to how the precepts of the religion or belief should be manifested or promulgated in the establishment)."

Baroness Scotland of Asthal: My Lords, I am just checking whether I can move the amendment. I think that since Amendment No. 19 has been agreed to, I shall not be able to move Amendments Nos. 20 and 21 because of pre-emption.

Baroness Lockwood: My Lords, is the noble Baroness not moving Amendment No. 20?

Baroness Ashton of Upholland: My Lords, according to the brief, if Amendment No. 19 is agreed to, we cannot call Amendments Nos. 20 or 21 because of pre-emption. I think that is the correct procedure at this point, in which case we shall not move them.

[Amendment No. 20 not moved.]
	[Amendment No. 21 not moved.]

Lord Lester of Herne Hill: moved Amendment No. 22:
	Page 31, line 11, leave out ", (2) or (3)" and insert "or (2)"
	On Question, amendment agreed to.
	Clause 51 [Local education authorities and education authorities]:

Lord Lester of Herne Hill: moved Amendment No. 23:
	Page 31, line 35, leave out subsection (2).
	On Question, amendment agreed to.
	Clause 52 [Public authorities: general]:

Lord Lester of Herne Hill: moved Amendments Nos. 24 to 28:
	Page 32, line 20, leave out "or harassment"
	Page 33, line 42, leave out from "ethos" to end of line 43.
	Page 33, line 48, leave out from "ethos" to end of line 49.
	Page 33, line 50, leave out from "institution" to end of line 51.
	Page 34, line 2, leave out from "institutions" to end of line 3.
	On Question, amendments agreed to.

Lord Dholakia: moved Amendment No. 29:
	After Clause 52, insert the following new clause—
	"MONITORING OF EXCEPTION IN RELATION TO IMMIGRATION CASES
	(1) The Secretary of State shall appoint a person who is not a member of his staff to act as a monitor in relation to immigration cases.
	(2) The person so appointed shall monitor in such manner as the Secretary of State may determine the operation of the exception in section 52(4)(f).
	(3) The monitor shall make an annual report on the discharge of his functions to the Secretary of State.
	(4) The Secretary of State shall lay a copy of any report made to him under subsection (3) before each House of Parliament.
	(5) The Secretary of State shall pay to the monitor such fees and allowances (if any) as he may determine."

Lord Dholakia: My Lords, Amendment No. 29 refers to Clause 52, which deals with public authorities. The purpose of that clause is to ensure that in exercising their function public authorities do not do any act that constitutes discrimination or harassment. Subsection (4)(f) provides prohibition, but it does not apply to a decision taken in accordance with rules under Section 3(2) of the Immigration Act 1971. These grounds are clearly defined, and they apply mainly to refuse entry clearance or leave to enter the United Kingdom on the grounds that the exclusion is conducive to the public good. We agree with that.
	The same applies to a decision to cancel leave to enter or remain in the United Kingdom. There are further powers, which include a decision to refuse an application to vary leave to enter or remain in the United Kingdom on the grounds that it is undesirable for a person to remain in the United Kingdom, or a decision to vary leave to enter or remain in the UK on the same grounds.
	But we have introduced new grounds as well. Clause 52(4)(g) states:
	"that a person holds an office or position in connection with a religion or belief or provides services in connection with their religion or belief . . . that a religion or belief is not to be treated in the same way as certain other religions or beliefs, or . . . that the exclusion from the United Kingdom of a person to whom paragraph (i) applies is conducive to the public good".
	Those are some of the grounds that have been introduced, and on that basis, we felt that it was appropriate to have a system of monitoring. The amendment in my name and that of my noble friend Lord Lester deals with this matter.
	I will spell out what we propose. In our amendment, we suggest that it is appropriate to have monitoring of exception in relation to the cases that I outlined, particularly on matters that relate to religious exception. We suggest the appointment of a person who is not a member of the Home Office staff to act as a monitor in relation to immigration cases. The purpose behind this amendment is to ensure that there is public confidence in the way that the system operates.
	At Report, I mentioned that we were grateful to the Government for ensuring that the exceptions to immigration rules were limited. We tried to achieve the same aim during the passage of the Race Relations (Amendment) Act 2000. Unfortunately, despite our various efforts, we were not successful then. There can be mistrust, particularly in the way that rules apply on the basis of religion and belief. Proper monitoring would remove any suspicion and the independence of the monitor would ensure that the provisions of Clause 52 are properly applied.
	Immigration officers have wide powers—in many cases the same powers as police officers. The police are subject to the Police and Criminal Evidence Act 1984. We believe that that if we need to safeguard both the way in which immigration rules are applied and the interests of individuals, the appointment of an independent monitor is important. I beg to move.

Baroness Scotland of Asthal: My Lords, I regret to say that I have to resist this amendment in the same way that we resisted it on Report. I said we would continue to consider the matter and we have looked into it with some care. On balance, we do not feel that it is right to reproduce the arrangements in the Race Relations Act 1976, to which the noble Lord referred.
	The exception that is now provided for immigration at Clause 52 is relatively narrow in comparison with that which is provided in Section 19D of the Race Relations Act 1976. The exception to the Race Relations Act potentially affects a large number of nationalities and a great many people: it may apply wherever there are objective grounds for believing that it is reasonable to subject people of different nationalities to different treatment for the purposes of immigration control. Such treatment must be authorised by a Minister and those authorisations are reported on by the Independent Race Monitor. A dozen or so are in force. In this case, a relatively small number of authorisations may affect a great many individual cases spanning a large number of nationalities.
	The situation in the case of the exception provided in Part 2 of this Bill is different. The discretion to discriminate on grounds of public good is likely to be exercised with regard to individuals rather than groups, and is unlikely to be an everyday occurrence. A remedy for failure to exercise this power correctly is available either through appeal—if the conditions for appeal are satisfied—or through judicial review.
	To the extent that the exception allows a determination that a particular religion is not to be treated in the same way as other religions—because it encourages children to renounce contact with their families, for example—leading to a refusal to grant recognition for the purpose of admission as a religious worker, then it is in any case not analogous with the power to authorise discrimination in respect of nationality.
	I know that the way in which this suggestion was proposed is that it would be a relatively easy thing to do, that it would not take much time and that it would be an add-on, which could be easily accommodated. That view was carefully explored with those primarily responsible for discharging this matter. The view that was taken, for the reasons that I have just given, was that it was neither possible nor appropriate for us to accept the proposal because it would be far too burdensome. For those reasons, and for those that I have already given, I must resist Amendment No. 29.

Lord Lester of Herne Hill: My Lords, before the Minister sits down, will she explain something? Let us suppose that a Pakistani Muslim is refused entry under immigration control. We have a race monitor to see whether such a decision was taken on a race basis, but we know that race and religion are intertwined in this area. Why would it be impossible or onerous for the race monitor not to be able to give public confidence to Muslims, Pakistani Muslims and ethnic minorities generally, by at the same time monitoring the religious as well as the racial aspects? I cannot understand that. The proposal would not cost much money—the same person could perform both roles and we know that it is hard to disentangle religious and racial grounds. That is what I cannot understand from the Minister's answer.

Baroness Scotland of Asthal: My Lords, I am grateful for the noble Lord's agreement that race and religion are difficult to disentangle. That is a contrary argument to the one that was made for the better part of this afternoon—that the two were easy to separate. That being the case, the view that has been taken is that there would have to be a different monitor for this as opposed to the other role and that the measure would be too bureaucratic and too difficult to deliver. I can assure the noble Lord that this matter was energetically pursued to see whether it would be possible to do what the noble Lord would like; especially bearing in mind that the noble Lord thought it would be simple and easy to achieve. For the reasons that I have given, the view was clearly taken that it would not be simple: it would be extremely bureaucratic and difficult and that when one looked at the consequences, it was not appropriate. That is the decision that the Government took. I can assure the noble Lord that the issue was fully explored.

Lord Dholakia: My Lords, I am grateful to the Minister for her explanation. I remind her that we raised this matter a long time ago and she made some genuine concessions. The powers of immigration are restricted. As my noble friend said, if I were a Muslim from Pakistan, I would certainly want to know whether I had been rejected on racial or religious grounds. It may be a few more years before we get such an amendment on to the statute book, but we will certainly keep trying. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 55 [Instructing or causing discrimination or harassment]:

Lord Lester of Herne Hill: moved Amendments Nos. 30 to 34:
	Page 36, line 2, leave out "or to unlawfully harass"
	Page 36, line 5, leave out "or to unlawfully harass"
	Page 36, line 7, leave out "or to unlawfully harass"
	Page 36, line 9, leave out "or harassment"
	Page 36, line 10, leave out "or harassment"

Lord Lester of Herne Hill: My Lords, in moving these amendments, I apologise for the split infinitive. I beg to move.

On Question, amendments agreed to.
	Clause 57 [Organisations relating to religion or belief]:

Baroness Whitaker: moved Amendment No. 35:
	Page 37, line 19, leave out "imposed" and insert "reasonably justified"

Baroness Whitaker: My Lords, in moving this amendment, I will also speak to Amendments Nos. 36 to 39 in my name and that of the noble Lord, Lord Marsh. They follow discussions with the British Humanist Association and I declare an interest as vice-president. I also very much appreciate the Minister's discussing the amendments with me. The essential point is that religious organisations, as defined in Clause 57 (1) and charities as defined in Clause 58 (1) may be carrying out options of a public nature—delivering services on behalf of local or national government or the national health service, for example. When they are thus acting as agents for public authorities, they should not be allowed to discriminate on religious grounds. We need to make it clear that they will not be so allowed.
	Clause 52 (1) states that:
	"It is unlawful for a public authority exercising a function to do any act which constitutes discrimination or harassment",
	but Clauses 57 and 58 both state that "nothing in this Part" shall be held to restrict religious organisations and charities. The problem is, if a public function is being exercised by a body as defined in Clauses 57 and 58, will they be caught by Clause 52 (1)?
	The question is complicated by the current controversy since the Leonard Cheshire case over precisely what a public authority is. What we need to be assured of is that Clause 52(1) would trump Clauses 57 and 58 in any future case. The amendments would achieve that.
	Finally, consistently with this approach, the words "reasonably justified" should be substituted for "imposed" in Clauses 57, 58 and 59, because "imposed" is far too weak a trigger for exemptions from the new and welcome duties in the Bill. The proper test for licence to ban membership, ban the provision of goods, facilities and services, ban the use of premises, is surely the reasonable justification. I beg to move.

Lord Lester of Herne Hill: My Lords, I support the amendment.

Baroness Scotland of Asthal: My Lords, I rise to speak to Amendment No. 35, which has been moved so eloquently by my noble friend Lady Whitaker, and to Amendments Nos. 36, 37, 38 and 39. I hope my noble friend will understand that I cannot accept these amendments, which revisit territory explored in this House in our discussions on removing the word "expedient" from Clauses 57, 58 and 59. However, I hope that what I say may give her some modicum of comfort.
	As I said on Report, the draftsman has given us a good set of words with the wording he provided—which this House then approved—which requires that there must be a causal connection between the purposes of the organisation and the restriction. It does not, however, go so far as to require that the restriction is necessary. This test is well balanced between the strict necessity and expedience, but should be easily understood by the courts. The words proposed by my noble friend in Amendments Nos. 35, 37 and 39 would provide a test which would be less easy to apply. For that reason the wording provided by the draftsman is, in our respectful view, to be preferred.
	Amendments Nos. 36 and 38 seek to prevent organisations and charities relating to religion or belief discriminating when providing a public function. I cannot accept these amendments. There will be occasions when a particular group has a specific need best met within the context of their own religion and when we might positively encourage an organisation to discriminate to ensure that need was met. An example might be a women's group catering specifically for the needs of Sikh or Muslim women, or a care home for Jewish people that received some public funding. These amendments would place too high a barrier in the way of service providers, who undertake valuable work, and for that reason we cannot accept them.
	Clause 52(1) states:
	"It is unlawful for a public authority exercising a function to do any act which constitutes discrimination or harassment".
	I can assure my noble friend that that provision prevails in relation to those acts which are outside the exemption. For instance, although in many instances there will be materially different circumstances which would justify discrimination in public functions, these would be liable for challenge in ways that are provided by the clauses as we have them. To reduce the protection provided by the clauses would risk increasing the chilling effect. If they stepped outside the specific exception that we provided, those issues could be challenged.
	My noble friend was concerned about bullying. What if someone was bullied in a school because they did not adhere to certain views? These provisions would not allow a school inappropriately to bully a child. It would be bound by the same rules against that sort of activity which apply now. It is the specific exemptions, and specific exemptions only, which would enable them to have advantage in that way.

Baroness Whitaker: My Lords, it is a pity that there is not one more stage to the Bill, so I would have a chance to study my noble friend's reassurance in Hansard before the Bill goes on its way. As I understand what she says, the courts would be likely to interpret the causes as they are in the way that I thought they would be after my amendments. On that basis, I suppose I ought to be content. I beg to leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 36 not moved.]
	Clause 58 [Charities relating to religion or belief]:
	[Amendments Nos. 37 and 38 not moved.]
	Clause 59 [Faith schools, &c.]:
	[Amendment No. 39 not moved.]
	Clause 72 [Validity and revision of contracts]:

Lord Lester of Herne Hill: moved Amendment No. 40:
	Page 42, line 41, leave out "or harassment of,"
	On Question, amendment agreed to.

Lord Lester of Herne Hill: moved Amendment No. 41:
	After Clause 80, insert the following new clause—
	"PART 2A
	DISCRIMINATION ON GROUNDS OF SEXUAL ORIENTATION
	REGULATIONS
	(1) The Secretary of State may by regulations make provision about discrimination or harassment on grounds of sexual orientation.
	(2) In subsection (1) "sexual orientation" has the meaning given by section 35.
	(3) The regulations may, in particular—
	(a) make provision of a kind similar to Part 2 of this Act;
	(b) define discrimination;
	(c) define harassment;
	(d) make provision for enforcement (which may, in particular, include provision—
	(i) creating a criminal offence of a kind similar to, and with the same maximum penalties as, an offence created by an enactment relating to discrimination or equality;
	(ii) about validity and revision of contracts;
	(iii) about discriminatory advertisements;
	(iv) about instructing or causing discrimination or harassment);
	(e) provide for exceptions (whether or not of a kind similar to those provided for by Part 2 of this Act or any other enactment relating to discrimination or equality);
	(f) make provision which applies generally or only in specified cases or circumstances;
	(g) make different provision for different cases or circumstances;
	(h) include incidental or consequential provision (which may include provision amending an enactment);
	(i) include transitional provision.
	(4) The regulations—
	(a) shall be made by statutory instrument, and
	(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
	(5) In subsection (3)(h) "enactment" includes an enactment in or under an Act of the Scottish Parliament."
	On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendment No. 42:
	Page 46, line 40, at end insert "(but nothing in that Table permits anything which is prohibited by virtue of any Community law relating to discrimination)"

Baroness Ashton of Upholland: My Lords, I said on Report that I was aware of the Equal Opportunity Commission's concerns about Clause 81. I was grateful to my noble friend Lady Lockwood for raising this question. That clause brings in a prohibition on sex discrimination and harassment in the exercise of public functions, through inserting a new section in the Sex Discrimination Act 1975. I take the opportunity to address one of the concerns raised, which can be dealt with appropriately in this Bill. This concerns the compatibility of the exceptions to the new provision in the Sex Discrimination Act 1975 with the gender directive, which will need to be implemented by December 2007. These exceptions are set out in a table of exceptions in Clause 81.
	The EOC is concerned that the implementation of the gender directive may require changes to the Sex Discrimination Act 1975 soon after the provisions of this Bill are brought into force. We have looked carefully at the points raised and the requirements of the gender directive, and we are sensitive to the need to minimise the disruption arising from changes required by Community law and to the need for clarity in advance.
	While there is in our view no conflict between the public functions provisions of this Bill and the requirements of the gender directive, we are anxious not to create in this Bill provisions that will conflict with the requirements of the gender directive or any other existing or future community law. Consequently, we propose Amendment No. 42 to make it clear that nothing in the table will permit anything which is prohibited by any Community law relating to discrimination. We agree we should make this clear beyond doubt.
	The EOC has other concerns relating to these exceptions but, as I indicated on Report, I believe the broader question of definitions and exemptions in the Sex Discrimination Act 1975 needs to be looked at more deeply in the discrimination law review. The review will provide full opportunities for the deep and detailed consideration that is needed. I beg to move.

Lord Lester of Herne Hill: My Lords, since the noble Baroness, Lady Lockwood, is not a free woman but is sitting on the Woolsack, I hope that she will not mind my speaking in her name and saying that, if she were free, she would say what I am about to say. We are grateful to the Government for having tabled and moved Amendment No. 42. As the Minister said, it ensures that the very broad exception in the table must be read subject to Community law relating to discrimination. It is put very neatly in that way. It means that, for example, the proportionality test in the gender directive will have to apply.
	As the EOC has indicated, there are other, wider structural problems with dovetailing between this Bill and the Sex Discrimination Act 1975. However, it would be beyond the scope of this Bill, as the Minister has said, to seek to deal with those sophisticated and complicated matters now. They will be dealt with, as I understand it, by the discrimination law review, which is entirely sensible.
	Finally, since this is probably my last opportunity to say this, I want to pay tribute to the Minister, without whom it would have been impossible to make the Bill into what it now is, that is, a Bill of which we should all be proud when we send it to the other place. I know that she has had a difficult time because she has had to deal with so many different departments and issues. It has been an enormous pleasure to me to work with her, and what she has done is quite remarkable.

Baroness Miller of Hendon: My Lords, I associate myself with the remarks of the noble Lord, Lord Lester.

On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendment No. 43:
	Page 55, line 35, leave out subsection (3) and insert—
	"(3) Paragraphs 36 to 38 and 41 to 55 of Schedule 3 (which amend the Estate Agents Act 1979 (c. 38) and the Disability Discrimination Act 1995 (c. 50)), together with corresponding entries in Schedule 4, shall not extend to Northern Ireland."

Baroness Ashton of Upholland: My Lords, I feel I should begin by saying, "Gosh".
	This is a minor technical amendment whose purpose is to tidy up some technical referencing in the Bill. Essentially, it clarifies that the consequential amendments to the Disability Discrimination Act and the Estate Agents Act contained in Schedules 3 and 4 do not apply in Northern Ireland. The amendments will ensure that the Northern Ireland-specific changes made to the Disability Discrimination Act and the Estate Agents Act as they came into force are thereby not undermined. I beg to move.

On Question, amendment agreed to.
	Schedule 1 [The Commission: Constitution, &c.]:

Baroness Ashton of Upholland: moved Amendment No. 44:
	Page 67, line 7, at end insert—
	"(2) The Transition Commissioner nominated by the chairman of the Disability Rights Commission may not be a member of the Disability Committee."
	On Question, amendment agreed to.
	In the Title:

Lord Alli: moved Amendment No. 45:
	Line 4, after "belief;" insert "to enable provision to be made about discrimination on grounds of sexual orientation;"
	On Question, amendment agreed to.
	An amendment (privilege) made.

Baroness Ashton of Upholland: My Lords, I beg to move that this Bill do now pass.
	Moved, that the Bill do now pass.—(Baroness Ashton of Upholland.)
	On Question, Bill passed, and sent to the Commons.

Commissioner for Older People (Wales) Bill [HL]

Report received.
	Schedule 1 [The Commissioner for Older People in Wales]:

Lord Roberts of Conwy: moved Amendment No. 1:
	Page 17, line 12, after "appointment" insert "and re-appointment"

Lord Roberts of Conwy: My Lords, in speaking to Amendment No. 1 I shall speak also to Amendment No. 2. These amendments are intended to draw attention to the difference between this Bill and the children's commissioner Bill, which includes details of the term of appointment and reappointment. In short, such matters were decided in primary legislation in that case.
	The provisions for appointment in the Bill differ from those in the children's Act in that this Bill reserves details of appointment and possible reappointment to the National Assembly and secondary legislation in the form of regulations. I recognise the arguments for this change of legislative approach: if the Assembly pays for the office of commissioner, as it will, it should make the appointment and settle its terms and conditions; the commissioner is the Assembly's employee, is responsible to the Assembly; and so on. But there are drawbacks of which we should be aware. As I mentioned in Committee, in a public consultation on this matter, the advisory group to the National Assembly found that 59 per cent of respondents opted for a four-year term of appointment and a similar term for reappointment, and I dare say that further consultation and discussion is likely before the final figure is decided upon.
	The whole process seems rather long drawn out and almost time wasting when the issue could be settled here and now in primary legislation, rather than being prolonged, as appears to be inevitable. Secondly, there is a hint in the Bill of what has become known as "creeping devolution". Your Lordships should be aware of the nature of that beast, especially in view of the devolution Bill that lies ahead of us later this Session. In the White Paper, Better Governance for Wales, we find a commitment to what is referred to as "framework legislation". Indeed, the style of appointment of this commissioner for the elderly seems to be typical of that kind of legislation. The change should not pass unnoticed. I do not intend to make a mountain out of a molehill, but I wonder whether the Minister can give us some indication of how long the appointment is to last and whether there will be a set term for reappointment. I beg to move.

Lord Evans of Temple Guiting: My Lords, I shall speak to Amendment No. 1 before turning to Amendment No. 2. During the discussion of this matter in Committee, I explained that the term "appointment" would also encompass the possibility of reappointment. I can assure noble Lords that the Assembly intends to make provision about this matter in regulations. Moreover, I refer noble Lords to the statement of policy intentions submitted by the Assembly in which it states its intention to specify an initial term of four years, renewable once, in line with the views expressed in the public consultation.
	Amendment No. 2 places in the Bill a requirement that the initial term of office of the commissioner is a period of five years. I acknowledge the instant clarification on this matter that such an amendment would bring. However, in our view, the appropriate term of office for the commissioner is quite properly something for the Assembly to determine. Giving the Assembly its own regulation-making power for the appointment of the commissioner will allow it to cater for any necessary changes to ensure that secondary legislation continues to fit closely the needs of older people in Wales. I hope that with this reassurance the noble Lord will feel able to withdraw the amendment.

Lord Roberts of Conwy: My Lords, I am grateful to the Minister for his comments on these two amendments. I said at the outset that my prime purpose in tabling the amendments was to draw attention to the differences in the appointment of the commissioner for the elderly and the commissioner for children in Wales. The Minister has given us all the details that we require about the likely term of the appointment and reappointment. Of course, it begs the question of why these details have not been put into the Bill at primary stage and why we have to await secondary legislation before these matters are incorporated. Nevertheless, we have now had an explanation and the Government's intention is clear. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 2 not moved.]
	Clause 2 [General Functions]:

Lord Roberts of Llandudno: moved Amendment No. 3:
	Page 1, line 8, leave out "may" and insert "shall"

Lord Roberts of Llandudno: My Lords, we welcome government Amendments Nos. 4 and 5, which arose out of discussion in Grand Committee. The Government have certainly listened and "good" has been replaced by "best". However, "may" has not been replaced by "shall". If a commissioner may do something, that means it is at his discretion and he has a let out. If he "shall", "will" or "must" do something, that is far more positive and it is an affirmation of something that he is obliged to do. Some say that one cannot oblige the commissioner or put a duty on him, but we believe that we can. The appointment is so important and it means so much to many people. If someone "may" do something it means that perhaps or possibly he will do something. An elderly person may think that he or she "may" achieve redress or "may" have a problem sorted out, but that is not what the Government are saying. They are sticking firmly to the word "may" and will not give us "must" or "shall". I suggest that the Government should consider this and say, "Yes, we agree that it must be far more positive, far more affirmative and that 'shall' or 'must' will replace 'may'". I beg to move.

Lord Prys-Davies: My Lords, the problem with a discretionary function is that, in practice, it can mean anything or nothing. If the commissioner decides not to exercise a discretionary function, it seems to me that he cannot be challenged on that. Perhaps the Minister will explain why in Clause 2 the general functions of the commissioner cannot be expressed in terms of duties which he must discharge rather than powers that he may exercise.

Lord Evans of Temple Guiting: My Lords, I shall speak to Amendment No. 3 before turning to the two government amendments. Amendment No. 3 seeks to replace the commissioner's power to undertake his general functions in Clause 2(1) with a duty. That would remove the discretion of the commissioner in relation to the exercise of his powers. That discretion was included in the Bill to ensure that the commissioner would be able to discharge his functions as he or she considers most appropriate and in accordance with his or her priorities.
	The view of the Assembly—I stress the Assembly—shared strongly by the Government, is that it is essential to secure statutory independence for the commissioner so that he should have the freedom to choose when, in what instances, and how he will exercise his functions. I also remind noble Lords that the commissioner will have to operate within a fixed annual budget, negotiated by him with the Assembly, and we do not want to introduce, as this amendment would, any constraints on his freedom to decide how to match his resources with the priorities that he has identified. Moreover, the amendment would also increase the potential for any individual or body to institute judicial review proceedings against the commissioner if there is disagreement with the priorities that the commissioner has set.
	Let me assure the House that the Government and the Assembly expect the commissioner to undertake all these general functions, and to do so in a proactive and vigorous manner to maximum effect. Listing them expressly in this clause makes it clear that there is an expectation that the commissioner will use these powers on an on-going basis in the interests of older people. That expectation is not an idle one. It has sanctions at its back. If there were to be a persistent, significant and perverse failure by the commissioner to exercise his powers in Clause 2, it is the view of the Assembly, shared by the Government, that that would amount to a basis for his removal on grounds of misbehaviour.
	I turn next to government Amendment No. 4. In Grand Committee, noble Lords expressed clearly their wish to see the term "safeguarding" included explicitly within the description of the commissioner's general functions at Clause 2. While the Government still contend that the Bill as drafted already gives the commissioner the power to take specific action to ensure that the interests of older people are safeguarded, we have listened to the views of your Lordships that this should be made explicit. I have therefore tabled government Amendment No. 4, which will achieve that clarity and will further ensure that there is consistency in the terminology used across Clauses 2, 3 and 5.
	Similarly, in Grand Committee the noble Lord, Lord Roberts of Conwy, proposed an amendment that sought to enable the commissioner to use his general functions to encourage best practice, rather than good practice, in the treatment of older people in Wales. I am most grateful to the noble Lord, Lord Roberts of Conwy, as well as to my noble friend Lord Prys-Davies for the arguments they put forward. In particular, the discussion drew our attention to the fact that some difference in standards might be inferred from the use of "good practice" in Clause 2 and "best practice" in Clause 11.
	In the interests of consistency we have consequently tabled government Amendment No. 5 to ensure that the commissioner encourages "best practice" in the treatment of older people in Wales. I think all of us would recognise that "best practice" is a subjective concept in the context of a general matter, such as the overall treatment of older people in Wales. But we believe that the commissioner is well placed to exercise his judgment about what it constitutes, just as he will when issuing "best practice guidance" under his Clause 11 powers.
	With these amendments, I hope that the noble Lords, Lord Thomas of Gresford and Lord Roberts of Llandudno, will feel able to withdraw their amendment.

Lord Roberts of Conwy: My Lords, I welcome government Amendments Nos. 4 and 5, which, as the Minister acknowledged, derive from our discussions in Committee. I am delighted that the Government have been open-minded enough to accept the substance of the changes that we called for and have altered the Bill accordingly. Best practice is certainly better than good practice and is the only acceptable practice. The meaning of "safeguarding" older people's interests is well understood by us.
	I have great sympathy with the Liberal Democrat Amendment No. 3; the performance of statutory functions should not be optional. As the Bill stands, it is a power rather than a duty and we would like to transform it into a duty. However, I also have sympathy with the Government's view that the commissioner should have discretion in the exercise of such a broad spectrum of functions as those described in Clause 2(1). He will certainly need to prioritise as regards performing those functions. While I have great sympathy with Amendment No. 3, I fear that I cannot support it more strongly than that.

Lord Roberts of Llandudno: My Lords, I am grateful to the Minister for his answer and for the two government amendments that we have welcomed. I am also grateful to the noble Lord, Lord Roberts of Conwy, for speaking well of our amendment. Possibly the best thing we can achieve tonight is to see how the Commissioner for Older People is effective in the first two or three years. If we see that we then need to reinforce his powers with obligation rather than discretion, we can visit this matter again. The Government of Wales Act means that we will have to look at many Bills in the future, including perhaps this one. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting: moved Amendments Nos. 4 and 5:
	Page 1, line 9, at end insert "and of the need to safeguard those interests"
	Page 1, line 12, leave out "good" and insert "best"
	On Question, amendments agreed to.

Lord Roberts of Conwy: moved Amendment No. 6:
	Page 1, line 13, leave out "effectiveness" and insert "effective implementation"

Lord Roberts of Conwy: My Lords, we had an interesting discussion on this point in Committee and I hope the House will forgive me for returning to it. At that time the Minister suggested that the amendment would in some ways diminish the power of the commissioner by allowing him only to review the effectiveness of legislation in terms of past practice and not future need.
	In his reply in Committee, the Minister suggested that the commissioner would have a further function to the one I anticipated in my amendment by way of Clause 3. The commissioner would be able,
	"to review the discharge of functions of the Assembly and listed bodies for the purposes of ascertaining whether, and to what extent, they safeguard and promote the interests of older people in Wales".—[Official Report, 18/10/05; col. GC 212.]
	If the commissioner detects a defect or inadequacy in legislation he may recommend a change in the law. Clause 3 refers to,
	"the making or proposed making of subordinate legislation".
	I have always been under the impression that it is up to Ministers to decide what further laws or changes to laws are necessary. The idea that the commissioner should have a hand in the making of new laws is a new concept to me.
	The Minister is also aware that I agreed with the amendment tabled by the noble Lord, Lord Prys-Davies, which sought to introduce law and practice into the commissioner's review. The difference between the Minister and myself is that I believe the function of the commissioner is to keep under review the adequacy and effectiveness of law and practice affecting the interests of older people. I also believe that it is a sine qua non that he should be able to check on the implementation of such laws. I hope that the Minister will consider the amendment and those related to it in the light of those key points. I beg to move.

Lord Thomas of Gresford: My Lords, Amendment No. 6 is grouped with Amendments Nos. 8 and 9, although they deal with a separate matter.
	In Amendments Nos. 8 and 9 we return to the well trodden path of devolution. The answer given by the Minister in Committee to amendments dealing with similar matters was that we were revisiting the devolution settlement. "Devolution settlement" is a favourite term of the Government. I have always thought of it as a phrase designed to placate English Members of Parliament and English noble Lords with some view that Welsh devolution had finished. But I have always borne in mind—and emphasised on a number of occasions—the words of the Secretary of State at the time of devolution, Ron Davies. He said that devolution is not an event but a process. It is a process which will continue.
	The Commissioner for Older People is the creature of the Westminster Parliament. The noble Lord, Lord Evans, said in Committee that it would not be appropriate for a commissioner established by the National Assembly for Wales to exercise his general functions under Clause 2 in relation to non-devolved matters. This commissioner is not established by the National Assembly for Wales but by this Westminster statute. Consequently there is no reason why the commissioner—who is independent of the National Assembly—should have his remit limited to devolved matters. He should be able to look at the interests of old people generally.
	I visited these matters when we discussed the position of the Children's Commissioner for Wales. When a Children's Commissioner for England was proposed, problems arose over the overlapping functions of that commissioner with the existing Children's Commissioner for Wales. We heard the views of the Children's Commissioner for Wales about the problems of an English commissioner coming into his territory.
	When dealing with children, we were concerned with Home Office affairs such as juvenile crime and juvenile prisons. With old people we are concerned with much wider non-devolved matters. These do not divide neatly into devolved and non-devolved matters. We are concerned with pensions, social security benefits, tax and social services. Many of those matters are not part of the National Assembly's responsibility.
	In addition, when dealing with elderly people with problems, their particular difficulties in these areas are exacerbated by frailty and by the impatience and frustration that is sometimes caused by a lack of understanding of what can be very complex matters. Clause 2(3) contains the compromise that we arrived at with Lord Williams of Mostyn in relation to the Children's Commissioner—namely that the commissioner could consider and make representations to the Assembly about any matter relating to the interests of older people in Wales. But the commissioner has to go through that channel.
	It is interesting to see how the Children's Commissioner has coped with non-devolved matters since his office was founded. Mr Peter Clarke gave evidence to the Welsh Affairs Committee on 22 April 2004 and was asked how he was dealing with non-devolved matters. He was asked what his powers were over judicial processes and whether he was able to intervene or report on these issues. He said that he could make representations to the Assembly and that he had approached the Minister for Health and Social Services on two non-devolved matters, the functioning of the Criminal Records Bureau and CAFCASS. He said that he had found,
	"a number of informal ways of being able to advocate on behalf of children and young people . . . I have been invited regularly to speak to magistrates' benches, family court judges and other judges within Wales; I have been invited into two or three prisons in Wales; I have meetings regularly with operational commanders in South Wales Police and I have had contact with other police authorities".
	These are all non-devolved matters. Mr Clarke continued:
	"The only place I found my current powers a serious impediment has been in the conduct of the Clywch Inquiry where I would have liked to have had access to a police report but I was not able to demand it, whereas I could demand documents from every other party".
	When questioned further by Mrs Julie Morgan, he said:
	"I do not have my strongest powers in the areas of non-devolved matters. I cannot require documentation to be given to me, I cannot require the attendance of witnesses to give evidence on oath if I am conducting an inquiry. From the point of view of being the most powerful children's champion possible it would be good from my perspective if the current Children Bill were amended to extend my powers over those matters".
	So the experience of the Children's Commissioner is that of being limited in the inquiries that he can make in relation to non-devolved matters. Yet here we are some time later setting up an admirable position of a Commissioner for Older People, but a commissioner without the necessary powers that he requires.
	When I look at Clause 9(2) I note another matter. The Commissioner for Older People cannot examine the case of any particular person in non-devolved matters at all. I see the Minister shakes his head. Am I wrong about that?

Lord Evans of Temple Guiting: My Lords, I am not shaking my head. I simply make the point—and I probably should not—that we discussed these matters very fully in Committee and at Second Reading. I really do not think that we need another lecture on them from the Liberal Democrats on Report.

Lord Thomas of Gresford: My Lords, I thought we were reporting to this House, sitting in the Chamber, on what had been discussed in Committee. I am not giving a lecture; I am making an entirely valid point that here again the position is that where individual cases relating to older people—and surely we all have the interests of older people in Wales at heart—cannot be considered by this commissioner. That is why I intend to move Amendments Nos. 8 and 9 in due course.

Lord Rowlands: My Lords, I want to tell the noble Lord why I shall be opposing his amendment if he presses it. There are two reasons. First, the continuing success of the devolution settlement has been its clarity of accountability. The commissioner may be created by Westminster statute, but it will be wholly and totally paid for by the Assembly. The Assembly's budget will carry the cost of the commissioner.
	Secondly, the agencies and the departments that the noble Lord wishes to bring within the scope of the commissioner's powers are United Kingdom agencies and departments which have their own very clear lines of accountability. They have lines of accountability to UK Ministers, to the Houses of Parliament through Select Committees and through questions and answers, and to Members of Parliament. The things that the noble Lord spoke about were the meat and drink of my 30 years' worth of parliamentary experience. That is the job of a Member of Parliament; that is the job of a Select Committee investigating at national level the role and the way all these agencies perform their duties in respect of older people, or, indeed any other clients of theirs.
	I have always sought to achieve equality of service across the United Kingdom. I do not want older people in Hertfordshire to have different benefits from older people in Monmouthshire. I do not want different rights for older people on each side of Offa's Dyke. I do not think that that is the way forward. I believe that this is a genuine United Kingdom interest and that we should sustain and maintain the quality of benefits and treatment. I certainly do not think that we should confuse the line of accountability. There is a very clear line of accountability for UK departments. They are accountable to the Parliamentary Ombudsman, to Select Committees, to Members of Parliament and to Ministers.
	Since the devolution settlement in 1998 communication between the Assembly, United Kingdom Ministers and officials at Whitehall has grown very successfully. Commissioners have to go through the Assembly. The Assembly will create this office by funding it and promoting the Bill, and I do not think that it should be bypassed in any way. Therefore, I do not believe that the noble Lord's amendment, which would allow the commission to have the right, presumably to go to UK Ministers—I think that is the logic of it—is the right way forward. I hope therefore that he will think about the matter. I also want the devolution settlement to work. I do not see this provision in terms of English Members at all; I see it as part of a growing process. The Assembly has grown. All the Richard commission evidence has demonstrated that. One of the ways it has grown is the way that we have maintained clear systems of accountability between ourselves and Westminster and between UK Ministers and Assembly Ministers. The Assembly is the best conduit through which this kind of representation should be made. I therefore will not be supporting the amendment of the noble Lord, Lord Thomas.

Lord Evans of Temple Guiting: My Lords, the effect of Amendment No. 6 would be to replace the wide powers the Bill gives the commissioner to review the effectiveness of legislation with a rather narrower power merely to review its implementation. That would mean that the commissioner would be unable to review the effectiveness of existing or proposed legislation, and would not, for example, be able to look at whether proposed legislation would be effective in achieving the policy aims that it was designed to fulfil. In the Government's view, that would restrict rather than enhance the commissioner's powers, whereas the clause as drafted would encompass all that the noble Lord seeks to include.
	During our consideration of this amendment in Grand Committee, the noble Lord, Lord Roberts of Conwy, said that,
	"we are faced with a new concept of the role of the commissioner in law".—[Official Report, 18/10/05; col. GC 214.] 
	I can reassure noble Lords that similar powers to review the adequacy and effectiveness of law have a precedent in other commissioner legislation—in the Commissioner for Children and Young People in Scotland, and the Northern Ireland Commissioner for Children and Young People.
	I turn to Amendments Nos. 8 and 9. These seek to extend the devolution settlement by giving the commissioner a power to exercise his general functions in Clause 2 in respect of matters that are not devolved to the National Assembly for Wales. We discussed this matter at great length in Grand Committee where I hope I made the Government's position quite clear.
	The establishment of the commissioner and the functions of that office must be consistent with the existing constitutional settlement. We absolutely agree that devolution is a process and not an event. That is why the Government will be bringing forward a Bill to address the future directions of the devolution process. I have made the Government's position absolutely clear on this, and we must wait for the new Bill to debate that direction.
	Non-devolved functions, as we know, are the responsibility of the UK Government and not the Assembly. It simply would not be appropriate for a commissioner established by the Assembly and for Wales to exercise his general powers in relation to non-devolved matters in the way that these amendments propose.
	The proper constitutional route, within the devolution settlement as it currently exists, is for the commissioner to make representations on non-devolved matters via the Assembly, as the elected body with democratic responsibility for the people of Wales. The Government hold firm to that view. I stated in Grand Committee that the Assembly Government understand and accept that position, although presumably they—and we—are looking forward to the new Bill, when published.
	Furthermore, the recent exchange of letters between the Wales Office and the Assembly Ministers, copies of which have been placed in the Library, show the commitment of both to ensuring that the process of dealing with the commissioner's representations is very effective. For the reasons I have explained, the Government cannot accept the amendment and I invite the noble Lord to withdraw it.

Lord Roberts of Conwy: My Lords, the noble Lord, Lord Thomas of Gresford, was quite right in saying that there are two very separate subjects within this group of three amendments. Amendment No. 6, which I moved, deals specifically with the interpretation of the commissioner's function in keeping under review the adequacy and effectiveness of law affecting the interests of older people in Wales. What concerned me—a concern shared, I think, by the noble Lord, Lord Prys-Davies, in Committee—was precisely what was meant by the process of checking on the effectiveness of law.
	We now know that if Amendment No. 6 were to be implemented, it would give the commissioner a narrower power and he would not be able to look as closely as the Government would wish him to at proposed legislation. The Minister has given us precedents for commissioners looking at proposed legislative developments and I accept the point that he made. At the same time, I wish to stress how important it is that the commissioner should be able to check thoroughly the effectiveness of the operation of the law, in so far as the interests of older people are concerned. That means law and its practice in Wales.
	The other two amendments, tabled by the Liberal Democrats, deal with the scope of the commissioner's powers and, personally, I do not think that one can have one's cake and eat it. The commissioner is very much an appointment of the Assembly and an employee of the Assembly; his office is financed by the Assembly. Therefore, it is understandable that this Bill should confine his functions and his powers to areas in which the Assembly also has functions. I am sure that this is not the last time that we shall be debating this issue. Nevertheless, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Roberts of Conwy: moved Amendment No. 7:
	Page 1, line 14, at end insert—
	"( ) be given the power to enforce the take-up of recommendations made in line with his functions under paragraphs (a) to (d)"

Lord Roberts of Conwy: My Lords, I have been made aware by Age Concern, Help the Aged and the Law Society of a general discontent with the lack of powers that the commissioner will have. Amendment No. 7 is made in response to those fears, as well as my own, that the commissioner will lack teeth, as we put it colloquially. The same concern permeated our earlier debate on Liberal Democrat Amendment No. 3, on the question of "shall" as opposed to "may" in the performance of functions under Clause 2.
	Before I move on, I must acknowledge the potential of Clause 13, which provides for further supplementary functions for the commissioner. That clearly anticipates that the commissioner may have further functions conferred on him. I can think of no better function to be conferred on him than the power of enforcing his own recommendations, which is what we propose in Amendment No. 7.
	Amendment No. 26 is also included in this group. That, again, is concerned with the examination of cases and action to be taken. The amendment is intended to ensure that the examination of cases is implemented thoroughly. As Clause 9(6) stands, examinations are closely governed by regulations, but it is not clear what happens if an examination results in a recommendation that is not then complied with. It seems to me ludicrous to have regulations relating to compliance with recommendations that do not cover situations arising in the event of non-compliance. Amendment No. 26 seems to me necessary in order to ensure clarity and consistency. I shall, at a later stage, return to comment favourably on the government amendments included in this group. I beg to move.

Lord Thomas of Gresford: My Lords, we support this amendment in giving additional and important power to the Commissioner for Older People. I refer to the views of Mr Peter Clarke in relation to his powers as the Children's Commissioner, and I shall return to that when Amendment No. 8 is called shortly. It is obviously important that recommendations made by the Commissioner for Older People should not lie on a shelf, gathering dust. Rather, they should be implemented and the commissioner should have the power to do so.

Lord Rowlands: My Lords, when the debate on this amendment took place in Grand Committee, I raised with the noble Lord, Lord Roberts, the issue of its budgetary consequences. I was waiting to see whether he had found a way of addressing the question that I put to him then, so I repeat: commissioners' recommendations could lead to considerable pressure on budgets. For example, it would be within the commissioner's responsibilities to make recommendations to a local authority—not necessarily one local authority, but all local authorities—about the services that it provides in certain respects of dealing with elderly people. The same is true of health trusts and even of those services directly budgeted for, funded and delivered by the Assembly itself. Recommendations of that kind could have serious budgetary implications for the organisations concerned.
	We are not talking about the enforcement of a particular recommendation. The commissioner could—would, I hope—identify areas where there was inequality of service delivery in a health trust, between health trusts or between individual local authorities and then recommend to the Assembly delivery of a uniform service. For example, as I said in Grand Committee, there could be a recommendation that physiotherapy be delivered for female incontinence sufferers across the board, as opposed to the current patchy delivery of that service from one health trust to another. That is exactly the kind of thing that we want the commissioner to highlight, but I question whether he should have a right to enforce a recommendation of that kind, which could have a considerable impact on the budgets of a local authority, a health trust or the Assembly.
	How will we marry the enforcement of an identified grievance of an individual, as opposed to a commissioner recommending as a result of his inquiries and services that a major new service should be provided for elderly people right across Wales, with considerable budgetary implications? Ultimately, in those instances, it has to be the responsibility of the Assembly, the local authority or the health trust to decide whether that would be the priority. Otherwise, the commission, in a curious way, will begin to assert the democratic rights and responsibilities of people elected at various levels to make decisions on priorities. That is my major query. I was waiting with some interest to hear whether the noble Lord, Lord Roberts, would respond to the point that I made to him.

Lord Prys-Davies: My Lords, in Grand Committee I very much understood and sympathised with the thought behind Amendment No. 7, although I cannot go along with it as it is drawn. The amendment draws attention to the position that will arise where the provider simply refuses to implement the commission's recommendation. The Bill simply ignores that possibility. We are making a mistake in designing a Bill that is silent on that issue.
	The provider may refuse to comply for one of a number of reasons. My noble friend indicated one good reason why an objector might not be prepared to go along with a recommendation, but there can be others—for example, wilfulness on the part of the provider. We know of damaging cases in the past few years where the provider was not prepared or willing to implement recommendations. I am not sure of the answer, but it should be possible to design a procedure where the recommendation and the objection to it can be referred to a third party for a decision that would be binding on the commission and the provider. That is an issue of considerable importance, and the Government should give it further thought.

Lord Evans of Temple Guiting: My Lords, I shall speak first to government Amendments Nos. 20, 21 and 27, before turning to Amendments Nos. 7 and 26, which stand in the names of the noble Lords, Lord Roberts of Conwy, Lord Luke, Lord Thomas of Gresford and Lord Roberts of Llandudno. In Grand Committee, noble Lords stressed the fundamental importance of the commissioner not only looking into matters of concern to older people and making reports and recommendations about those matters, but being able to pursue his recommendations and hold bodies to account for their actions in response to his reports.
	We expect the commissioner to be proactive in his approach to making and following up recommendations. To make that absolutely clear in the Bill, we have tabled Amendments Nos. 20 and 21, which extend the regulation-making powers in Clause 6(5) to enable the commissioner to require prescribed persons to provide him with information for the purposes of determining whether a recommendation made in a report, following a review of arrangements, has been complied with. Furthermore, Amendment No. 27 provides that, where a person fails to comply with such a request for information, that will be dealt with by means of the existing obstruction and contempt provision in Clause 10.
	Amendment No. 7 would allow for the commissioner to be given the power to enforce any recommendations that he might choose to make in connection with his general functions. Compliance with those recommendations would be obligatory. However, providing for such an enforcement power in respect of the discharge of general functions would mark a significant extension of the commissioner's powers and would go far beyond the powers of any other commissioner or ombudsman.
	Such a power could also cut across the work of regulatory bodies, such as the Care Standards Inspectorate for Wales, create duplication and cause confusion about who is in the lead on regulation and enforcement. In the Government's view, therefore, the Bill, strengthened by the government amendments, strikes the right balance by providing an appropriate level of follow-up action according to whether a specific or a general function has been discharged. The Assembly Government share that view.
	Similarly, in considering Amendment No. 26, the Government and the Assembly Government are of the view that the addition of such a power would be inappropriate and largely unnecessary. With his existing powers the commissioner is able during an examination to request information, explanations and assistance for the purpose of identifying individual responsibility. That information will allow him, as part of the process of drawing up his recommendations, to determine what person or body is responsible for taking action on those issues. Furthermore, the commissioner will be able to identify responsible individuals in his reports and recommendations, if he considers it to be in the public interest. In such cases it would be evident on whom responsibility for implementation rested.
	I now turn to two questions asked by my noble friend Lord Prys-Davies. First, is there an appeal against the commissioner's recommendation? No, we do not think that it is appropriate for the Bill to make provision for appeal mechanisms in the event that the commissioner's recommendations are not complied with. It would not be appropriate for any third party, such as another ombudsman, to pass judgment on whether the commissioner's recommendations were reasonable or had been adequately complied with. That would create a hierarchy of commissioners and ombudsmen, thus undermining their status as independent officers and a point of final recourse.
	If a public body is not complying with the recommendations of the commissioner or any other ombudsman, the only way that that decision could be challenged would be in the courts by way of judicial review. Any review proceedings would not be against the commissioner's decision but against the decision of the body that is not complying with the commissioner's recommendation.
	My noble friend also asked what would happen if a body refused to implement the commissioner's recommendation. There would be a number of avenues open to the commissioner in such a case. He may, for example, decide to review the discharge of functions of that body and produce another report with further recommendations. For example, if a decision had been taken not to pursue a recommendation because the necessary funding was not available, the commissioner could make a recommendation that the Assembly, or another appropriate body, should meet the cost or redefine the relevant policy priorities. In the light of those explanations, and with the three government amendments, I hope that the noble Lord will withdraw his amendment.

Lord Roberts of Conwy: My Lords, I welcome Amendments Nos. 20, 21 and 27. They are improvements to the Bill. The commissioner should be enabled to require people to provide him with information so that he may decide whether a recommendation has been complied with. That is certainly a step forward. It is also right that, where a person fails to comply with such a request, the commissioner should be able to issue a certificate to the High Court so that proceedings for contempt of court may ensue. Those changes certainly help to ensure that the commissioner's recommendations are taken seriously and are on no account to be disregarded.
	I must answer the noble Lord, Lord Rowlands, as I tried to do, if I remember correctly, in Committee, when he raised the question of resources that lay behind the enforced implementation of the commissioner's recommendations. This is the second time this evening that the issue of adequate resources for the commissioner has been raised. It was mentioned when we discussed Amendment No. 3 and the question of whether the functions should be powers or duties. The question of resources dictated that the commissioner should have some latitude to prioritise and perform according to the resources available to him.
	Again, the question of adequate resources for the commissioner arises in the implementation of a recommendation, as per my amendment. That, too, comes under the "may" category, and it would be up to the commissioner to decide what recommendation to highlight as not being adequately complied with. Some discretion still rests with the commissioner in putting forward what are after all his own recommendations following on his functions under Clause 2.

Lord Rowlands: My Lords, I am grateful to the noble Lord for raising the point, but I do not think that we are talking about the commissioner's resources. The commissioner's resources are modest by comparison. It is his recommendations about the use of other people's resources that raises the issue of enforcement, not the resources that he will have at his disposal. He will not have the resources to provide new services for elderly people throughout Wales but will recommend the utilisation of services and how resources will best be deployed. He may be entitled to make a recommendation, but he should not be able to enforce other people's resources to be used in the way that the noble Lord suggests.

Lord Roberts of Conwy: My Lords, I take the noble Lord's point, but I have argued that it is entirely up to the commissioner what recommendation he makes. In making recommendations, he will have to take into account the resources issue, not just those available to him but the resources of those who are subject to his recommendation. In support of my interpretation of the commissioner's power to issue recommendations and the fact that he must be aware of his resources, I cite the fact that we have made his functions permissive rather than statutory in the strongest sense.
	I certainly take the noble Lord's point. It is clear that the resources available in Wales and to those subject to the commissioner's recommendations are highly relevant. If the debate has done no more than try to ensure that those subject to the commissioner are adequately resourced, we shall have done something by tabling the amendment, which I now beg leave to withdraw.

Amendment, by leave, withdrawn.

Lord Carter: My Lords, I must inform the House that, if Amendment No. 8 is agreed to, I cannot call Amendment No. 9 on the ground of pre-emption.

Lord Thomas of Gresford: had given notice of his intention to move Amendment No. 8:
	Page 1, line 15, leave out subsection (2).

Lord Thomas of Gresford: My Lords, I speak to the amendment to give myself an opportunity of replying to the critique of the noble Lord, Lord Rowlands, which I very much appreciate. I understand his concern about accountability and clear lines. Having considered that, it is a matter to which we shall have to return when the new Bill is before us. I hope that there can be considerable discussion about how to widen devolution—I am sure that the noble Lord's heart is in the right place.
	The amendment is not so much concerned about reporting to the Minister as to the inquiry that the Commissioner for Older People can carry out under Clause 2(3). It is a fact that the commissioner has strong powers to deal with devolved matters, but when he is considering non-devolved matters under Clause 2(3), his powers, like those of the Children's Commissioner, will not be the strongest. In carrying out an inquiry to report to the National Assembly, he will not have powers to summon witnesses and to examine documents. Clearly the reports that he can make on non-devolved matters will be that much weaker as a result.
	The Minister should appreciate that I have not come here without having read the entire Committee deliberations, and I read what the noble Lord, Lord Rowlands, said. Before Third Reading, we should consider whether the powers of the Commissioner for Older People should be strengthened when he is considering non-devolved matters under Clause 2(3). I give notice that we may table amendments for that purpose. I appreciate that the Minister has already replied, and I am prepared not to move my amendment at this stage, unless he wishes to say more.

[Amendment No. 8 not moved.]
	[Amendment No. 9 not moved.]
	Clause 3 [Review of discharge of functions]:

Lord Roberts of Conwy: moved Amendment No. 10:
	Page 2, line 5, after "review" insert "and monitor"

Lord Roberts of Conwy: My Lords, the argument about the amendment has changed somewhat since the Government introduced their amendments to Clause 5. Our argument was that if monitoring was necessary in the context of Clause 5 it was necessary in Clause 3.
	The Government have argued that reviewing includes monitoring, and have decided by their Amendment No. 17 to remove the words,
	"and monitor the operation of",
	from Clause 5, and to deepen the review procedure in that clause by Amendment No. 18.
	They have at least achieved consistency, but I would still like to see monitoring by the commissioner added to his ability to review the discharge of functions by all who come under his purview, for the reason that I am about to give the Minister, which I know he will appreciate. The Oxford English Dictionary tells us that to review something is, at most, to,
	"survey, to take a survey of".
	That is surely for our purposes just the first step and not necessarily inclusive of any action.
	In the same dictionary we find that to monitor something is to,
	"observe, supervise, or keep under review; to keep under observation; measure or test at intervals"—
	here is the important point—
	"especially for the purpose of regulation or control".
	I think that that settles the difference between us. I beg to move.

Lord Roberts of Llandudno: My Lords, we on these Benches support the amendment. As the noble Lord, Lord Roberts of Conwy, said, the intention is to keep as close an eye as possible on the effectiveness of the commissioner's activities. As with every post, one learns from experience. We will see where the strengths of the post lie and where its failings might be. We may need to alter and look again at the remit and the operation of the commissioner's post. We support the amendment and we are sorry that "and monitor" has come out of Clause 5. We hope that the Government will think again and insert "and monitor" after "review".

Lord Prys-Davies: My Lords, I shall be brief. It seems to me that the grounds for the amendment in Grand Committee have now disappeared in the light of the Government's amendment. Nevertheless, "monitoring" is still the correct word to use in certain circumstances and I would have thought that it was right to use it in the circumstances of Clause 5.

Lord Evans of Temple Guiting: My Lords, I shall speak first to Amendment No. 10, before turning to Amendments Nos. 17 and 18. We discussed in some detail in Committee the issues raised in Amendment No. 10. I explained at that time that the Government's view is that both Clauses 3 and 5 already enable the commissioner to undertake review and monitoring activity. I am grateful to the noble Lord, Lord Roberts of Conwy, for looking up the definition of "monitor" in the Oxford English Dictionary. I understand that the dictionary makes a distinction between "review" and "monitor", but that distinction has no legal significance here as the terms used in the Bill must be interpreted in the context in which they appear. The term "review" in Clauses 3 and 5 includes monitoring activity and the Bill makes it clear that the purposes for which the commissioner may review functions and arrangements are safeguarding and promoting the interest of older people in Wales.
	However, the Government have reflected on the concerns that were put forward by your Lordships, in particular those about the difference in terminology used in Clauses 3 and 5, and, as the noble Lord, Lord Roberts, has said, they have therefore brought forward Amendments Nos. 17 and 18 to address these concerns. These amendments align the terminology used in the Bill by removing the reference to monitoring in Clause 5, while making it clear that the term "review" would include the process of monitoring over time. We may not agree on this, but I hope that noble Lords will be reassured to some extent by these amendments and feel able to withdraw their own.

Lord Roberts of Conwy: My Lords, we are grateful to the Minister for commenting on the amendments that he has brought forward to meet our concerns. Nevertheless, we thought that instead of taking "and monitor" out of Clause 5, he would have progressed to the point of inserting "and monitor" in Clause 3. He has not done that, but he has given us an assurance that "review" in his vocabulary includes monitoring. So for the time being we can only accept his judgment, with the reservation that if we find it defective between now and Third Reading, we may return to this matter then. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Roberts of Llandudno: moved Amendment No. 11:
	Page 2, line 12, at end insert—
	"( ) The results of the Commissioner's work shall be the subject of an annual report.
	( ) The Assembly or appropriate body investigated by the Commissioner shall publish a response within six months."

Lord Roberts of Llandudno: My Lords, this amendment is about the publication of the annual report by the Commissioner for Older People in Wales. We had this discussion in connection with the Public Services Ombudsman and it was agreed in that case that a report would be produced. For transparency's sake, we need to know exactly what the commissioner is doing. We need to know how the resources are being used and whether this post is resourced adequately. We also might want to find out whether the commissioner feels that his hands are tied behind his back because he cannot deal with so many problems. He might say, as the CAB tells us, "We had 88,000 queries regarding pensions, but I couldn't deal with that: it wasn't in my remit". Or he might say, "We had 6,000 questions regarding taxation for elderly people, but I couldn't deal with that: it wasn't in my remit". If we have a report, it will show the weaknesses and the strengths of this particular post at this particular time. As has been said many times, justice must be seen to be done. We therefore ask the Government to agree to an annual report which will show the experience of the post and how it can be increasingly effective as the years go on.
	Similarly, the next part of the amendment would require the publication of the response of those who are investigated by the commissioner. They should be given an opportunity to admit their faults, or even to justify the action that they have taken. I beg to move.

Lord Roberts of Conwy: My Lords, I support that part of the amendment which would require an annual report to be published. I am not sure about the second part of the amendment because all kinds of questions arise; for example, if a body has been investigated by the commissioner, is a response to be published within six months regardless of whether the investigation is adverse or favourable? The second part of the amendment requires rather more definition, but the annual report aspect is certainly very important.

Lord Evans of Temple Guiting: My Lords, I was a little surprised to see that this amendment had been tabled because I explained during our discussions in Committee that the Assembly has made clear its intention to make regulations requiring the commissioner to produce an annual report, using its powers in paragraph 8 of Schedule 1 of the Bill. This was set out in the statement of policy intentions produced by the Assembly and placed in the Library of the House in June.
	We think that it is appropriate that the making of reports to the Assembly should be provided for in regulations to be made by the Assembly. I covered this point in some detail in my memorandum to the DPRR committee. It also mirrors similar provisions in the Children's Commissioner for Wales legislation.
	These regulations will contain detailed administrative provisions which we think would be suitable for inclusion in regulation rather than the Bill. This will allow the Assembly greater flexibility in the future in terms of the reporting requirements and will give the opportunity for detailed consultation as part of the Assembly's procedures for making regulations.
	I turn to the second part of the amendment. The Government's and the Assembly's position on this has not changed since our discussions in Committee. We do not feel that it is appropriate to place a requirement on the Assembly or any other person to respond to the commissioner's annual reports.
	The annual reports will be concerned primarily with action that the commissioner has taken and intends to take in fulfilling his remit. They are less likely to deal in detail with what action other bodies might or might not have taken. However, as I explained, a mechanism is in place for considering the observations and recommendations that will be contained in the reports in the form of a plenary debate of the Assembly. In this way, the Assembly can be held publicly accountable for any perceived inadequacies in its policies for older people that are raised by the annual report. In the light of my comments, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Roberts of Llandudno: My Lords, I am delighted by the positive response from the Minister and by his reference to the increasing authority of the National Assembly for Wales. I hope that that will soon be conveyed to us in the new government of Wales measure. So, hoping for good news in the future, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Schedule 2 [Persons whose functions are subject to review under section 3]:
	[Amendment No. 12 not moved.]

Lord Thomas of Gresford: moved Amendment No. 13:
	Page 22, line 31, at end insert—
	"The air ambulance in Wales.
	Ambulance services and trusts.
	A voluntary organisation."

Lord Thomas of Gresford: My Lords, I will couple Amendment No. 13 with Amendments Nos. 14 to 16. I have already referred to the statement in Clause 2(3) that one of the general functions of the commissioner is to,
	"consider, and make representations to the Assembly about, any matter relating to the interests of older people in Wales".
	Of course, the purpose of that subsection is to give the Commissioner for Older People power to deal with non-devolved matters; that is, to make reports and representations to the Assembly on those issues. When we come to Clause 3, it seems appropriate to include in Schedule 2 the bodies to which these amendments refer.
	First, under Amendment No. 13, it seems right to add to the list of health bodies the air ambulance in Wales, ambulance services and trusts, and a voluntary organisation. It is proposed that they be put within that category. Amendment No. 14 refers to particular United Kingdom-wide services; pensions and benefits, jobs—in particular, job discrimination—and the criminal justice system. The noble Baroness, Lady Finlay of Llandaff, also has an amendment, to which we have added our names. She has asked me, in her absence, to speak to Amendment No. 15, which would include police authorities within the remit of the Commissioner for Older People. We do this fully appreciating that these are non-devolved matters, but it would be appropriate for specific reference to them to be made in Schedule 2.
	So far as Amendment No. 16 is concerned, bearing in mind the general function of the commissioner, to consider and make representations on,
	"any matter relating to the interests of older people",
	it would seem inappropriate to put the restriction that Clause 4(2)(d) does on amending Schedule 2, by requiring that,
	"at least half of the person's expenditure on the discharge of its functions . . . is met . . . from payments made by the Assembly".
	That limitation cuts down the general functions of Clause 2(3), to which I have referred. I await the Minister's reply. I beg to move.

Lord Evans of Temple Guiting: My Lords, I turn to Amendments Nos. 13 and 23, and Amendments Nos. 14, 15 and 16—all of which deal with adding a body to Schedules 2 and 3.
	Amendment No. 13 stands in the names of the noble Lords, Lord Thomas of Gresford and Lord Roberts of Llandudno. As I explained in Committee on this matter, the air ambulance service and ambulance services in Wales are covered by the inclusion in the schedules of an,
	"NHS Trust managing a hospital or other establishment or facility in Wales".—[Official Report, 26/10/05; col. GC 325.]
	There seemed to be an element of doubt among your Lordships about that in Committee, but I can assure you that it is definitely the case. Therefore the amendment is unnecessary.
	I absolutely accept that voluntary organisations are important, and particularly relevant to older people. However, the point I made during Grand Committee still stands. To add "voluntary organisations" in general to Schedule 2 or Schedule 3, as Amendment 23 proposes, would significantly alter the scope of the Bill. It would also be at odds with other commissioner or ombudsmen models, which are focused upon the accountability of bodies and persons who provide statutory services. Introducing this level of accountability and scrutiny into the voluntary sector inappropriately may discourage the provision of some voluntary services, which is certainly not our intention.
	Amendment No. 14 seeks to give the Commissioner a locus in non-devolved matters. I have already stated the reasons why the Government cannot accept emendations of this nature and I do not intend to go over the matter again.
	Amendment No. 15 seeks to insert police authorities into the list of bodies in Schedule 2. While I fully acknowledge the role that police authorities play in safeguarding the health and safety of older people in Wales, policy responsibility for policing in England and Wales lies with the Home Office, which also provides a substantial proportion of the funding for police authorities. As with Amendment No. 14 it would not therefore be appropriate, under the terms of the existing constitutional settlement, for police authorities to be included in Schedule 2.
	The requirement that Amendment No. 16 seeks to remove is not just about making a distinction between devolved and non-devolved organisations. It is about defining the type of organisation that should be brought within the commissioner's remit, based on the financial contribution that comes from the Assembly. Removing the requirement would enable the Assembly to add to Schedule 2 an organisation, devolved or non-devolved, that received at least half its funding on the discharge of its function in Wales from the UK Government without any requirement for consent from the relevant UK department. It would also make Clause 4(3) redundant. I hope, in the light of this rather lengthy explanation, that the noble Lord will feel able to withdraw his amendment.

Lord Thomas of Gresford: My Lords, does the Minister accept that under Clause 2(3), the commissioner,
	"may consider, and make representations",
	which would include reviewing the effect on older people in relation to non-devolved matters?

Lord Evans of Temple Guiting: My Lords, I can confirm that the commissioner would be able to do that.

Lord Thomas of Gresford: My Lords, in the light of that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 14 and 15 not moved.]
	Clause 4 [Power to amend Schedule 2]:
	[Amendment No. 16 not moved.]
	Clause 5 [Review and monitoring of arrangements]:

Lord Evans of Temple Guiting: moved Amendments Nos. 17 to 18:
	Page 3, line 18, leave out ", and monitor the operation of," and insert—
	"(a)"
	Page 3, line 19, after "(2)" insert ", and
	(b) the operation of any such arrangements,"
	On Question, amendments agreed to.

Lord Prys-Davies: moved Amendment No. 19:
	Page 3, line 25, at end insert—
	"( ) the implementation of the guidance on best practice issued under section 11."

Lord Prys-Davies: My Lords, I see that Amendment No. 19 is grouped with Amendment No. 28. In fact they have nothing at all in common, so I will speak to Amendment No. 19. Clause 5 provides that the commissioner may review the three arrangements which are referred to in subsection (2). They are the advocacy arrangements, the complaints arrangements and the whistle-blowing arrangements. The purpose of Amendment No. 19 is to expand the clause to empower the commissioner to review the arrangements for the implementation of the guidance on best practice. Having regard to the fact that the guidance on best practice will play a key role in promoting and maintaining high standards of service, I suggest that the arrangements for its implementation are just as important as the three arrangements referred to in subsection (2), if not more so. Prevention is better than cure; and if the guidance is being implemented, it is reasonable to conclude that there will be less demand on, or need for, advocacy, complaints and whistle-blowing arrangements. That is the case for Amendment No. 19. I beg to move.

Lord Thomas of Gresford: My Lords, in this group is Amendment No. 29, in which we seek to extend guidance that is given by the commissioner on best practice, not only to the Assembly but to the United Kingdom Government as well—that is to say, to departments of the United Kingdom Government. I shall speak to that, or reply to the Minister, when that amendment is called.

Lord Evans of Temple Guiting: My Lords, Amendment No. 19 would enable the commissioner to look at the arrangements that a listed body had in place for implementing the commissioner's guidance on best practice. It would not, however, enable him to consider whether the guidance itself had been implemented, which from our discussion I believe was my noble friend's intention.
	I have therefore tabled Amendment No. 30, which adds two new subsections to Clause 11. They provide that a body that has been issued with best practice guidance by the commissioner must have regard to that guidance in discharging its functions and that, in discharging his functions, the commissioner will consider the extent to which a body has complied with any guidance he has issued.
	I hope that my noble friend accepts that the explanation that I have just given meets his concerns.

Lord Roberts of Conwy: My Lords, I wish to express my appreciation for the new subsections added to Clause 11. The first enables the commissioner to check whether his guidance has been complied with, so that he may issue a further report if necessary, and provides some much-needed strengthening to the whole process of issuing guidance. Some of us would have liked to see the guidance given statutory force, but that is not regarded as appropriate—and one can understand why. Nevertheless, the power in the new subsection is a strong hint that when the commissioner issues guidance he means it to be followed, and that he is not without remedy if his guidance is disregarded.

Lord Prys-Davies: My Lords, I should have welcomed Amendment No. 30, tabled by the Government. The requirement in that amendment is very helpful, because it will mean that the authorities are to take the guidance with considerable seriousness. So that is a strong obligation. Nevertheless, a minority of authorities will not behave as well as they should, so we will still possibly have difficulties. I note what my noble friend said and shall reflect on it. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 6 [Review and monitoring: supplementary]:

Lord Evans of Temple Guiting: moved Amendments Nos. 20 and 21:
	Page 4, line 38, after "for" insert "either or both of the following purposes—
	(a)"
	Page 4, line 39, at end insert—
	"(b) the purposes of determining whether a recommendation made in a report following the discharge of his functions under section 5 has been complied with."
	On Question, amendments agreed to.

Lord Prys-Davies: moved Amendment No. 22:
	After Clause 6, insert the following new clause—
	"UNDERTAKING OR ASSISTING RESEARCH
	The Commissioner may undertake or assist (financially or otherwise) the undertaking by a body or other persons of any research and any educational activities which appear to the Commissioner necessary or expedient for the purposes of section 2."

Lord Prys-Davies: My Lords, the value of the research is not doubted, and the lack of any specific reference to research in the Bill is worrying. In Grand Committee on 18 October my noble friend the Minister readily agreed that research was an important tool for the commissioner in connection with any of his functions, not only for the general functions set out in Clause 2 and referred to in my amendment. He gave four examples of when research would be required or necessary, which was helpful. But then he opposed the amendment, saying that it was not necessary; he said that the commissioner could undertake research under paragraph 19 to Schedule 1. But when you read that paragraph, you find the power expressed subject,
	"to any directions given by the Assembly".
	The paragraph goes on to say that a direction,
	"may be amended or revoked by a subsequent",
	amendment.
	So that is the weakness of paragraph 19 powers. Therefore, I believe that there is a great difference between the amendment and the power in paragraph 19—and unfortunately the difference is that between certainty and uncertainty.
	The Minister went on to oppose the amendment because it,
	"may call into question the extent of the commissioner's power to undertake similar activities using his supplementary powers in Schedule 1".—[Official Report, 18/10/05; col. GC212.]
	With the greatest respect, it struck me that this was an inadequate argument. It raises the question of how any express power has been set out in the Bill. That is the argument for amendment No. 22. I beg to move.

Lord Rowlands: My Lords, I rise to support my noble friend. Health inequalities in Wales are still totally unacceptable, and reflect a kind of postcode shopping equivalent: often, the more deprived the area, the more elderly people are deprived of services. If the commissioner were given the specific responsibility for undertaking research of this kind to identify areas of health inequality, it would help to highlight and promote the debate and ensure action. My noble friend is right in asking the Government to make this a specific duty or responsibility of the commissioner, because it could be central to the valid work that he or she could do in addressing issues of health inequality.

Lord Roberts of Llandudno: My Lords, we would support any move that strengthened the commissioner's effectiveness. We see an opportunity here to look at the inequalities in Wales, as the noble Lord, Lord Roberts, said. We on these Benches support this amendment.

Lord Evans of Temple Guiting: My Lords, Amendment No. 22 makes specific provision enabling the commissioner to undertake or assist others in research in any other educational activity the commissioner considers necessary or expedient for the purposes of Clause 2. We are in full agreement with the noble Lord, Lord Prys-Davies, that it is vitally important that the commissioner should be able to undertake such research or educational activities. We have complete confidence that the Bill already allows for the commissioner to do this via his supplementary powers in paragraph 19 of Schedule 1, which provides that the commissioner may do anything that is calculated to facilitate, or is conducive or instrumental to, the discharge of his functions. This would include such activities such as commissioning or undertaking research or engaging expert advice, and could be done in connection with any of the commissioner's functions, not just those in Clause 2.
	Our disinclination to include this amendment is based purely on our wish to avoid narrowing the ability of the commissioner to undertake such research. I can therefore reassure your Lordships that we are in complete agreement with the spirit of this amendment, and that in our view the Bill already makes adequate provision for research activities. However, given that these points have been forcefully made by my two noble friends, I will reflect on what they have said between now and the next stage of the Bill to see whether any strengthening is needed in the Bill. There is no disagreement between us; it is simply a question of reassuring noble Lords that the Bill will do what we say it will. In the light of what I have said, I hope the amendments will be withdrawn.

Lord Prys-Davies: My Lords, it gives me great pleasure to accede to the request of my noble friend. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Schedule 3 [Persons whose arrangements are subject to review and monitoring under section 5]:
	[Amendment No. 23 not moved.]
	Clause 9 [Examination of cases]:

Lord Prys-Davies: moved Amendment No. 24:
	Page 6, line 22, at end insert—
	"( ) Regulations may make provision for the examination by the commissioner of a complaint made by a member of the public who claims that it is in the public interest that the situation described in the complaint be examined and the commissioner is satisfied that it should be examined in the public interest."

Lord Prys-Davies: My Lords, the drafting of this amendment may well be defective. It became clear during the course of the discussion in Grand Committee that there is no provision in the Bill as it now stands for a third party to make a complaint to the commissioner about a matter that is in the public interest, unless the elderly person concerned consents to the making of the complaint. We have a duty to protect the public interest, even though the elderly person directly concerned may be unable or afraid to consent to a complaint being lodged with the commissioner.
	The need for the power, assuming I have correctly understood the Bill, could arise when the commissioner receives a complaint from a member of the public setting out the circumstances, which should be examined by the commissioner in the public interest. I should not like to tempt case histories in anticipation of anything of that kind, but it could arise where the standards of service for the elderly provided by a named authority are seriously depressed, and the complainant provides supportive evidence, but the complaint is not made with the consent of an elderly person who receives the service. The complainant is induced to make the complaint as a matter of public interest. That is the reason for the amendment. I hope that my noble friend will also be sympathetic to this amendment. I beg to move.

Lord Thomas of Gresford: My Lords, we on these Benches fully support the amendment that has been moved by the noble Lord, Lord Prys-Davies. It is an important power for the commissioner to receive a complaint and, if he is satisfied that it should be examined in the public interest, then to examine that complaint.
	This amendment is coupled with Amendment No. 25, which to my mind sets out one of the real weaknesses of the Bill; that is, that any matter relating to non-devolved matters cannot be the subject of an individual investigation. It seems to me that the commissioner ought to have power to investigate individual cases even though the matter relates to a non-devolved issue. I have already outlined the other weakness that we discussed earlier, and I shall not return to that. It seems to me that if the commissioner cannot examine an individual case relating to a non-devolved matter his powers are very considerably restricted. Your Lordships will recall that I pointed out that many of these non-devolved issues such as pensions and benefits are the cause of the greatest worry to older people.

Lord Roberts of Conwy: My Lords, I rise to express my support for the thrust of Amendment No. 24. Indeed, I have a great deal of sympathy with Amendment No. 25. It seems to me that if the commissioner is to have any real standing in Wales, he should be able to examine any defect, any disturbance, or any matter that is in the public interest. Once we deny him the right to examine a matter that is in the public interest, we depreciate him and his office enormously.

Lord Evans of Temple Guiting: My Lords, Amendment No. 24 relates to Clause 9. This clause and the regulations which it enables the Assembly to make concern the examination by the commissioner of an individual's case, or of a group of linked cases. It therefore makes sense that at the heart of an examination made using these powers there must be a specific case to be examined.
	The Government consider that, logically, this must mean that the individual whose case it is must give their consent. Alternatively, if perhaps they lack the mental capacity to do so, consent ought to be obtained from someone who the commissioner considers to be an appropriate person to give it.
	It is difficult to see how the commissioner could investigate a case thoroughly when the subject of it refused to give him information about it. If, as I think my noble friend envisages, a scenario arose where an issue of concern was identified by a concerned relative or even a member of the general public, but the older person whose situation had given rise to the concern refused to give his consent for his case to be examined, the commissioner could still decide to take action. He would, for instance, be able to use his powers under Clauses 2 and/or 3 to investigate issues of wider concern and to make a report about them, or issue best practice guidance if he thought that was warranted. Therefore, while I understand the sentiment behind Amendment No. 24, the Government cannot accept it. It would not be right for the commissioner to be able to disregard the wishes of an older person and to examine their case when they did not want him to do so.
	In their Statement of Policy Intentions, the Assembly government have acknowledged that it is important that the cases that the commissioner takes on for examination,
	"raise a question of principle which has a more general application . . . than in the particular case concerned".
	That is very close to saying that they ought to be pursued where they are in the wider public interest.
	Amendment No. 25 seeks to give the commissioner a locus in non-devolved matters by enabling the commissioner to examine the case of an older person in Wales in connection with his power to make representations to the Assembly about non-devolved matters. I have already made clear the Government's position on this matter on many occasions. We cannot accept that the commissioner should be able to exercise his powers directly in relation to non-devolved matters.
	In the light of these explanations I hope that the noble Lord will feel able to withdraw his amendment.

Lord Prys-Davies: My Lords, I thank the Minister for his response, although I am disappointed with what he had to say. Nevertheless I will have to study very carefully the contents of his answer in deciding whether to return to this issue at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford: had given notice of his intention to move Amendment No. 25:
	Page 6, line 23, leave out subsection (2).

Lord Thomas of Gresford: My Lords, I want to reply to the Minister's explanation. When this matter came before the Committee the noble Lord said—and this is to show that I have read what he said—that:
	"The power to examine individual cases will be an important function of the commissioner, and one that may involve considerable resources".—[Official Report, 26/10/05; col. GC 352.]
	That is right—it is an important function of the commissioner. Why then, if the commissioner wishes to look at non-devolved matters under Clause 23, should he be debarred from looking at an individual case? Noble Lords will know from their own experience that it is generally speaking the individual case that triggers the wider picture and which causes an investigation to start. It is not some general feeling among the population that it is time to do something about a particular issue—it is an individual case that is important. This is a weakness in the Bill which we will return to at Third Reading.

[Amendment No. 25 not moved.]
	[Amendment No. 26 not moved.]
	Clause 10 [Obstruction and contempt]:

Lord Evans of Temple Guiting: moved Amendment No. 27:
	Page 7, line 18, leave out "6(5) or 9, or" and insert "9,
	( ) without lawful excuse, has failed to comply with a requirement to provide information which was imposed in the exercise of a power conferred by regulations made under section 6(5) or 9(5), or"
	On Question, amendment agreed to.
	Clause 11 [Guidance]:

Lord Prys-Davies: moved Amendment No. 28:
	Page 7, line 29, leave out "may" and insert "must"

Lord Prys-Davies: My Lords, I start from the standpoint that the guidance on best practice is potentially an enormous and important tool for the commissioner. It is my understanding of general law that the commissioner could issue a non-statutory code of practice without being empowered to do so in any Act of Parliament; it is an implied power.
	I am pleased that the guidance is to be issued on the exercise of a power in the Bill. I think that will help greatly to increase the legitimacy of the court but it would be an even greater enhancement if it was issued in pursuance of a duty.
	The impact of the guidance on best practice will be at least twofold. I envisage that it will set out in some detail the general principles and standards which the commissioner will endeavour to promote and facilitate in all parts of Wales, subject obviously to local circumstances, so that we can have the best possible service. Secondly, the guidance will be readily available to the elderly and to members of the public, who are entitled to know what standards of service should be available to them in their own community. Those two benefits, taken together, indicate the need for "may" to be replaced by "must". I beg to move.

Lord Evans of Temple Guiting: My Lords, the amendment seeks to replace the commissioner's power to issue best practice guidance in Clause 11 with a duty to do so. That would oblige the commissioner to produce and issue best practice guidance in connection with any matter relating to the interests of older people in Wales. It would be a substantial and onerous duty with significant cost and capacity implications. Our aspirations for the commissioner's guidance are very much in tune with those of my noble friend. It is an important function, which must be discharged effectively. But the Government consider that it is best achieved by providing the commissioner with the discretion to decide how, when and on what subjects he should issue best practice guidance.
	We do not want to oblige the commissioner to flood the prescribed bodies with guidance on everything and anything that he looks into; that would surely be unworkable and undesirable. Furthermore, the commissioner will have to set a budget each year, and he will need to make decisions on the most appropriate use of his resources in accordance with his priorities. I hope that what I have said will reassure my noble friend, and I invite him to withdraw his amendment.

Lord Prys-Davies: My Lords, on the whole, what my noble friend said was reassuring. Accordingly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 29 not moved.]

Lord Evans of Temple Guiting: moved Amendment No. 30:
	Page 7, line 36, at end insert—
	"(4) Where guidance issued under this section is applicable to a person mentioned in subsection (2), that person must have regard to the guidance in discharging his functions.
	(5) In discharging his functions in respect of a person mentioned in subsection (2), the Commissioner may have regard to the extent to which the person has complied with any guidance issued under this section which is applicable to that person."
	On Question, amendment agreed to.
	Clause 12 [Power of entry and of interviewing in private]:

Lord Roberts of Llandudno: moved Amendment No. 31:
	Page 7, line 40, leave out ", other than a private dwelling,"

Lord Roberts of Llandudno: My Lords, in trying to insert here the right of the commissioner to intervene in the life of a person who is cared for in his or her own home we have a fundamental decision to make. The whole ethos and force of this measure is to ensure that no single elderly person anywhere in Wales suffers any harm at all. So many elderly people suffer in their own homes because of inappropriate care, or even sometimes because of people's deliberate actions to make their lives a misery. We know from the Health Committee that 500,000 elderly people suffered abuse the year before last. That number is colossal, and many suffer in their own homes. What we are asking here is that no person, wherever he or she is residing, should suffer harm in any way at all.
	Most families and carers, as we know, are doing a remarkable job, and we often say how much we appreciate the work that is being done by so many of them. But now and again the newspapers report an account of neglect or deliberate harm to an elderly person. How do we prevent that? As we mentioned in Grand Committee, we have adult protection co-ordinators appointed by the various councils. They can get a magistrate's order and enter a home. The police can also do that. However, surely in cases of domestic violence, it should be possible to enter a home—if a child is going to be hurt it is possible to enter the home. All we ask is that it should be possible for the Commissioner for Older People to enter homes and make sure that, in cases of suspected abuse, he is able to look after and care for the person who is suffering. I beg to move.

Lord Evans of Temple Guiting: My Lords, I understand and sympathise entirely with the reasons behind this amendment. None of us would want to think that an older person might be left to suffer unnecessarily behind closed doors. However, the simple and compelling fact remains that to give the commissioner the power to enter an individual's private home would be a disproportionate interference with an individual's right to privacy and in breach of the Human Rights Act. It would also set a precedent among other commissioners and ombudsmen, none of whom has such a power.
	If the commissioner had concerns about the personal safety of an older person, he would be able to pass those on to the appropriate authorities, such as the police or social services, for action. It would not be for him to try to deal with such situations himself. For example, if the police believed that an older person was in danger, they would be able to enter premises using their wide investigatory powers. A crucial point is that we must remember that the commissioner will not be working in isolation, but operating within an existing framework of legal protection for vulnerable people. Having said that, I hope that the noble Lord will agree that the clause must remain as drafted.

Lord Roberts of Llandudno: My Lords, I have heard the Minister's response. I am not entirely satisfied with it because to put any territorial area outside the boundaries of where the commissioner can intervene makes it possible for people to be harmed or abused in those situations. We may reconsider the matter at Third Reading, but this evening, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Roberts of Llandudno: moved Amendment No. 32:
	Page 7, line 42, at end insert—
	"( ) interview the older person in private in the presence of an independent advocate."

Lord Roberts of Llandudno: This amendment arises from submissions by the Law Society and Age Concern. Age Concern is worried that people interviewed in their own homes could be under undue influence from members of the family or others in the home. It wants the person who has called for someone to intervene in a nursing home or residential home to be able to have an advocate appointed—someone who can be independent of any allegation of abuse or ill treatment. This amendment should be made to the Bill.
	Age Concern is worried that an elderly person might depend on a care worker or family member and might be reluctant or afraid to offend that family member. Pressure might be brought to bear—intentionally or unintentionally—on the older person not to consent to an interview in private. Age Concern suggests that there should never be any case where an older person is unable to shout for help or make his situation known to others. So, as with the organisations that have submitted their evidence, we ask that wherever there is an interview with an older person there is always the opportunity for an independent advocate to be present. I beg to move.

Lord Evans of Temple Guiting: My Lords, as we have heard, this amendment seeks to enable an older person to have an independent advocate present when being interviewed by the commissioner in connection with his functions under Clauses 3 and 5 of the Bill.
	I made it absolutely clear in Committee that, although not specifically stated on the face of the Bill, an older person may be interviewed by the commissioner with a third party present if they so wish. There may be circumstances in which an older person may wish to give their consent to be interviewed only if an independent advocate is present. Clause 12(1)(b) would enable this to happen without the need for any amendment. If an older person does not wish to have an independent advocate present they may make that decision for themselves.
	The noble Lord, Lord Livsey of Talgarth, asked in Committee what might happen in a situation where an older person was unable to give their consent to being interviewed. The basic position is that there will be a presumption that a person is capable of giving their consent unless the contrary can be shown. The question is whether the person is capable of giving their consent in relation to the specific matter for which consent is sought. The issue of capacity and consent is a very difficult legal area and I think it is an area where the commissioner would have to tread very carefully and in accordance with legal and medical advice.
	The need for consent is an important principle here, and in circumstances where an older person lacks capacity to give that consent, it would normally not be appropriate for the commissioner to undertake an interview. Neither would it be appropriate for an independent advocate or another third party to give consent on behalf of the older person. I emphasise again that an independent advocate should only be present where the older person wishes this to happen.
	In the light of what I have said, I hope that the noble Lord will, on reflection, withdraw his amendment.

Lord Roberts of Llandudno: My Lords, if there were a large number of people present here tonight, I would take this to the vote. It is an important section of the Bill. It is our contention that in no situation shall a person be beyond the reach of the commissioner. This is putting a private dwelling place, or even a nursing home—where who knows what happens—beyond the reach of the commissioner. Tonight, however, hoping that we will return to it again, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Rowlands: moved Amendment No. 33:
	Page 13, line 17, after "consult" insert "and receive the approval of"

Lord Rowlands: My Lords, this amendment pursues a point that I raised at the end of Grand Committee, when the Government introduced what was then their new Clause 19, dealing with the complaints procedure in respect of the commissioner.
	This clause is about complaints against the commissioner, the possibility that the commissioner may not have discharged his or her duties properly, and the procedures that would be required if an individual thought that the commission had failed him or her. It is a question not of the commission's independence but of who should finally approve the procedures of complaint against the commissioner.
	In this clause, the commissioner must consult the Assembly and, having amended the complaints procedure in the light of such consultation, send a document to the Assembly, as in subsection (5). I suggest that there is a case for the Assembly having greater responsibility for these procedures. They are drafted to ensure that the individual has a right to complain against the commissioner's performance of his or her duties. I do not believe that, in that instance, the commissioner should be the final arbiter. What if, for example, the Assembly did not think that the commissioner was bringing forward procedures that were robust and rigorous enough to deal with the complaints against him or her?
	What if the Assembly found itself at loggerheads over these procedures? Under this provision, the commissioner could stick to his or her guns and establish a procedure for complaint about him or herself. It is not the case—as my noble friend indicated very briefly at the end of our discussion—that an amendment of this kind would somehow impinge upon the commissioner's independence. This is nothing to do with the discharge of the commissioner's functions in, for example, pursuing grievances. Of course he or she must have total independence in that respect, but I doubt he or she should have total independence in dealing with developing a complaints procedure against him or herself. In this case, there is a strong case for the commissioner to seek the approval of the Assembly when establishing such procedures. I beg to move.

Lord Prys-Davies: My Lords, I warmly support the amendment tabled by my noble friend Lord Rowlands. As he has so clearly explained, under the Bill the procedure for the investigation of complaints against the commissioner is designed by the commissioner himself. It is designed by the person against whom the complaint is made. Unless the procedure is approved by an independent third party or the Assembly, there is at least a possibility of a suspicion that the commissioner will be regarded as a judge and party in his own cause. Indeed, it is equally in the interest of the commissioner himself, and of all other parties, that the procedure should command confidence. The more thought that the Government can give to this matter, the better.

Lord Thomas of Gresford: My Lords, we on these Benches support this amendment. Without some approval by a third party, the procedure would possibly be subject to judicial review and may very well be incompatible with the European Convention on Human Rights. There is no need to risk matters of that sort. The approval of the Assembly is an obvious good.

Lord Roberts of Llandudno: My Lords, I, too, rise to support the thrust of the amendment. I anticipate that the Minister's reply will be to the effect that consultation already implies that the procedure could not be carried further unless "consultation" meant the approval of the Assembly. The amendment requires a positive approach by the Assembly. That approval should go beyond the consultative stage, which might imply a minimal degree of approval by the Assembly of what is proposed. The Assembly must fully approve the procedure adopted.

Lord Evans of Temple Guiting: My Lords, I have listened carefully to what has been said on this amendment. Some extremely good points have been made. I would like an opportunity to reflect on what noble Lords have said before Third Reading. Given that commitment, I would be grateful if the noble Lord would withdraw his amendment.

Lord Rowlands: My Lords, as always, my noble friend is generous in his response. There is a consensus around the Bill and around this amendment. I hope that he will take that into account. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 23 [Older people in Wales]:

Lord Roberts of Conwy: moved Amendment No. 34:
	Page 13, line 37, leave out "60" and insert "50"

Lord Roberts of Conwy: My Lords, this is a very contentious issue. The Government's strategy document for older people, Opportunity Age—Meeting the challenges of ageing in the 21st century, which has been my bedside reading for the past few weeks, was referred to by the Minister and me in Committee. It sets the starting age limit at age 50. In Committee, the Minister agreed with me that from the age of 50 serious issues of disadvantage and discrimination affect some people as they move towards old age. The noble Lord's argument for maintaining the threshold at 60 in the Bill—and not moving to 50—is that the commissioner's primary duty is to protect those who receive services as older people in Wales. Generally, the provision of services begins at that age.
	The needs of those aged between 50 and 60 will be provided for, I assume, by the general developments within that strategy document. The Minister acknowledges the importance of supporting the over-50s as an age group that is vulnerable to the onslaught of what one might call the concomitant disadvantages of old age. It is an age-group that the White Paper acknowledges has, for example, a lower than average level of employment. My argument is that once the strategy starts providing for people's needs, by definition, it is a service. Such provision would fit very snugly under the commissioner's remit in Wales without argument about devolved or non-devolved areas. If the strategy does not serve a purpose, we may well wonder what it does, apart from being a statement of intent.
	Another point that arises is the tremendous emphasis in Opportunity Age on 50 as the starting age. Would it be fair to Welsh people who are over 50 if their English neighbours of that age are entitled to different and special support and treatment? England may well decide to give over-50s special services. Would the Welsh qualify? If not, would that put the commissioner in Wales, and the Welsh people, very much out of kilter with those in England? Surely that would be an undesirable effect of devolution. Addressing the needs of those aged 50 and over is a matter of anticipation and it is written into Opportunity Age, which is a key government document. To take a decision that goes against the content of that White Paper is asking for trouble. I rest my case, and ask the Government to consider again the starting age of 60 and to replace it with 50, as England has already done. I beg to move.

Lord Evans of Temple Guiting: My Lords, this amendment was discussed at some length in Grand Committee and at Second Reading. I will avoid going over old ground today.
	As I said in Grand Committee, our primary concern is the greatly increased workload that the amendment would place on the commissioner. This would in turn reduce the effectiveness of his role. Setting the age threshold at 50 would provide the commissioner with too broad a remit, covering one-third of the population of Wales.
	I would also like to address the concerns that were voiced in Grand Committee that older people in Wales would somehow be disadvantaged in comparison with those in England. The noble Lord, Lord Roberts, returned to this point this evening. I can clarify that the strategy for older people in Wales—like its sister strategy Opportunity Age—has an age threshold of 50. Both documents set out a way forward for planning for old age. The new age equality regulations which will apply equally in England and Wales set no qualifying age and safeguard people of any age from unequal treatment at work. The Commission for Equality and Human Rights will likewise operate in Wales as well as in England to promote human rights and enforce the age equality and disability legislation.
	I reassure the noble Lord, Lord Roberts of Conwy, that there will be nothing available in England which will not be available to older people in Wales, all from the age of 50. The sole difference between the two countries is that there will be a Commission for Older People in Wales that will offer additional support to people aged 60 or more in Wales. In Grand Committee the noble Lord made the point that needs cannot be defined purely by age. He talked of people aged between 50 and 60 who may be experiencing health problems and queried whether there would be some flexibility for the commissioner to operate on their behalf. Of course there will be deserving cases—no doubt along the lines that the noble Lord indicated—that the commissioner will not be able to involve himself in because the person concerned is under 60. But we have to draw a line somewhere and we believe that 60 is a sensible and pragmatic choice.
	A number of the issues that the commissioner uncovers that are problematic for people aged 60 or more and then addresses will have a positive effect on the experiences of people who are slightly younger and share similar difficulties. Standards will be raised for a wider age group than just those of 60 or more. I hope that with this explanation the noble Lord, Lord Roberts of Conwy, will be able to withdraw the amendment.

Lord Roberts of Conwy: My Lords, I am grateful to the Minister for what he has said and his assurance that we shall not be at a loss in Wales simply because our commissioner starts with people aged 60 while Opportunity Age in England declares 50 to be an appropriate starting point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	House adjourned at four minutes past nine o'clock.
	Wednesday, 9 November 2005.